TEXAS DWI BLOOD TEST MOTION IN A TEXAS DWI ARREST

Texas DWI Attorney Stephen Hamilton frequently files this motion on behalf of his Texas DWI clients:  

MOTION TO TAKE DEPOSITION OF TEXAS DWI STATE'S CHEMIST (BLOOD TEST)

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes Texas DWI Defendant in the above-entitled and numbered cause and files this Motion to take the oral deposition of the chemist the state intends to have testify as its expert witness when the case is brought to trial. In support of this Motion, defendant shows the following:

1. Defendant was charged with Texas Driving While Intoxicated, 3rd offense. At the request of the arresting officer, defendant submitted to the taking of a blood specimen. The blood specimen was then tested to determine the defendant's blood alcohol level.

2. The chemist who analyzes such blood alcohol tests is a material witness with highly relevant evidence to provide, and undoubtedly the state will call the chemist as a witness at trial. It is essential that counsel for the defendant interview the chemist prior to trial. Texas DWI laws Section 724.018, Tex. Transp. Code Ann. (Vernon) provides that "[o]n the request of the person who has given a specimen at the request of a peace officer, full information concerning the analysis of the specimen shall be made available to the person or the person's attorney."

3. Good reason exists for deposing the state's chemist because (a) the chemist will testify to the accuracy of the blood test results in regard to the defendant's degree of intoxication, and (b) the chemist is in possession of relevant, probably exculpatory evidence. Depositions may be ordered in criminal cases in Texas if good reason exists for taking the deposition. See Texas DWI Laws Tex. Code Crim. Proc. Ann. art. 39.02.

4. There are no written guidelines or regulations for law enforcement officers to follow in determining the alcohol concentration of a defendant who has given a blood sample. Texas DWI laws Section 724.017 is the only statutory reference to blood specimens, and it does not provide for any method or procedures to take or analyze blood specimens.

5. The defendant's blood specimen was analyzed by a chemist of the Texas DWI Department of Public Safety, and that agency has no written guidelines or procedures for taking and analyzing blood specimens. Furthermore, there are several ways to perform an alcohol concentration analysis of a blood specimen which are not of equal reliability. Without a deposition, the defendant will not have notice of the procedure used to determine his alcohol concentration.

6. Failure to permit the requested deposition will harm the defendant by precluding defendant's access to relevant, exculpatory evidence until it is too late to use this evidence, thereby preventing the defendant from preparing his defense and subjecting him to a surprise at trial. In order to provide effective assistance of counsel, defendant's attorney requires a reasonable amount of time to review and comprehend the material upon which the chemist relies in determining the chemist's opinion of defendant's level of intoxication. There is insufficient time to do so at a pretrial hearing.

7. Without this deposition, the defendant will be denied his rights to effective assistance of counsel, a fair and impartial trial, compulsory process, confrontation and cross examination of witnesses, due process, due course and equal protection of the law as guaranteed by the Texas and United States Constitutions.

WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court grant this Motion and order deposition of the state's chemist at a specific time and at a specific place.

Respectfully submitted,

Boatwright & Hamilton, LLP

Texas DWI Attorneys

1005 Broadway

Lubbock, TX 79401

800-DIAL-DWI

Fax: (806) 747-8110

By:

Stephen Hamilton

Attorney for Texas DWI Defendant

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