Texas DWI Attorneys Boatwright & Hamilton have challenged Texas DWI Blood Tests by filing this motion for their clients: 

 MOTION FOR DEPOSITION OF
 WITNESS WHO WITHDREW BLOOD SPECIMEN

TO THE HONORABLE JUDGE OF SAID COURT:

 Now comes Texas DWI Defendant in the above-entitled and numbered cause, and makes Application to take the oral deposition of the Department of Public Safety the witness who withdrew a blood specimen from the defendant.  The State intends to have this witness testify at trial, and in support of this Motion, defendant shows the following:
 1. On or about January 15, 2005, the defendant was charged with Texas DWI Driving While Intoxicated, 3rd offense.  The defendant then submitted to the taking of a blood specimen after the arresting officer's request to do so.  The blood specimen was then tested to determine the defendant's blood alcohol level.
 2. the Texas DWI Department of Public Safety is a material witness with highly relevant evidence to provide.  Undoubtedly, the State will call the Department of Public Safety as a witness at trial, and the witness will testify that they took a blood specimen from the defendant, the method, manner, and procedure that was used to take and preserve the blood, and how they are qualified to take a blood specimen.
 3. Additionally, the witness will testify as to the method, manner, and procedure which they used to prepare the defendant for the taking of blood.  The method, manner, and procedure which the witness used to extract and preserve the blood could affect the validity of tests performed using the blood specimen.  A contaminated specimen could cause erroneous test results.  Thus it is essential that counsel for defendant interview the Texas DWI Department of Public Safety prior to trial so that the defendant will have notice of the manner, method, or procedure used by the witness to take and preserve the blood specimen.
 4. Diligent efforts to interview the Texas DWI Department of Public Safety have failed to produce results, as detailed in the affidavit of Stephen Hamilton.  See Exhibit A attached.
 5. the Texas DWI Department of Public Safety is a material witness.  As the matter stands now, short of an order granting this Motion, it is not foreseeable that defendant can speak to him prior to trial.  Without this evidence, defendant will be denied the right 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, guaranteed by the Texas and United States Constitutions.
 6. 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.  We submit that good reason does exist in this case because the Department of Public Safety is in possession of relevant, probably exculpatory evidence, and the witness will not be interviewed voluntarily.
 7. The trial court has wide discretion in this area.  See James v. State, 563 S.W.2d 599, 602 (Tex. Crim. App. 1978); Henriksen v. State, 500 S.W.2d 491, 494 (Tex. Crim. App. 1973).  We have already shown why good reason does exist.  We respectfully submit that there is no good reason whatsoever not to order this deposition.  Failure to do so will harm defendant by precluding them from access to relevant, exculpatory evidence until it is too late to use this evidence, thereby preventing them from preparing their defense and subjecting them to surprise at trial.
 8. The Texas Court of Criminal Appeals has intimated that "good reason" may exist for a deposition when the state's witnesses refuse to talk to defense counsel prior to trial. the Department of Public Safety, of course, is in precisely this posture.  See Martinez v. State, 507 S.W.2d 223, 226 (Tex. Crim. App. 1974); Gentry v. State 494 S.W.2d 169, 172 (Tex. Crim. App. 1973); Tucker v. State, 461 S.W.2d 630, 634-35 (Tex. Crim. App. 1971).
 WHEREFORE, PREMISES CONSIDERED, defendant prays that the Court grant this Motion and order the deposition of the Department of Public Safety at a specific time and place.
Respectfully submitted,

Boatwright & Hamilton, LLP

Texas DWI Attorneys
1005 Broadway
Lubbock, TX 79401
(806) 747-8002
Fax: (806) 747-8110

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