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  • Writer's pictureBrian Foley

Houston DWI Attorney - Beating a Blood Test DWI

Houston DWI Attorney - Brian Foley - Board Certified in Criminal Law



Challenging a DWI with a Blood Test: Know Your Options and Penalties


When it comes to DWI charges, many people believe that a blood test result is an open-and-shut case. However, even with a blood test, there are opportunities to challenge DWI charges. Whether you consented to a blood test or the police obtained a warrant to draw your blood, an experienced DWI lawyer in Houston can assist you in fighting a DWI arrest.


In this blog post, we will explore how you can contest a blood test in court and highlight the potential issues with blood testing procedures. Additionally, we will discuss the penalties for a DWI with a blood test result in Texas.


How Can You Contest a Blood Test in Court? When challenging a blood test in court, several factors can be questioned to cast doubt on its accuracy. Some key elements to consider include:

  1. Insufficient reasonable suspicion to justify the traffic stop.

  2. Lack of probable cause for detaining you for a DWI investigation.

  3. Coercion by the officer leading to your consent.

  4. Lack of probable cause in the blood warrant.

  5. Blood sample taken in an unsanitary facility.

  6. Faulty or uncertified instrument used to test the sample.

  7. Improper refrigeration of the blood sample.

  8. Improper use of a grey top forensic tube during blood collection.

The Disconnect Theory: The Disconnect Theory comes into play when there is a discrepancy between the visual evidence (such as body or dash camera footage) and the lab report. If the video evidence does not show signs of intoxication, but the blood test result indicates a high blood alcohol level, it raises questions about the accuracy of the test. Issues with blood testing procedures, such as the integrity of blood vials, transportation, and laboratory refrigeration, can impact the final blood test result.


Convicting someone of a DWI based on the legal limit of 0.08 requires no reasonable doubt about the accuracy of the blood test result. When there is a disconnect between video evidence and the lab report, it suggests that something may have gone wrong with the government's evidence.


How Does the Blood Alcohol Testing Process Work? When an officer arrests you for a DWI, they must inform you of the consequences for your driver's license if you refuse to provide a breath or blood sample. If you consent, the officer will take you to a hospital or a jail facility to collect a sample of your blood. The process typically involves the following steps:

  1. Arrest

  2. Transportation to a hospital or jail facility

  3. Collection of two grey top blood vials by a nurse or phlebotomist

  4. Sealing of blood vials in a package

  5. Blood samples are sent to a laboratory (typically with no refrigeration at this stage)

  6. Refrigeration begins at the laboratory

  7. Sample is extracted and transferred to a new container

  8. Analysis in a Gas Chromatograph along with other samples

  9. Computer-generated number assigned based on detected gases

  10. Issuance of a Lab Report

The first step is to challenge the initial reason for the traffic stop and examine any contradictory evidence from body or dash cameras. A thorough examination of all the evidence is paramount. Your lawyer can help object at each phase of the process and highlight any problems that may have occurred during the collection and testing of your blood sample. By raising doubts about the integrity and accuracy of the blood test, you can cast reasonable doubt on the prosecution's case.


Penalties for a DWI with a Blood Test: In Texas, the penalties for a DWI with a blood test result vary based on the blood alcohol concentration (BAC) level:

  1. BAC between 0.08 and 0.14999: Class B Misdemeanor, maximum penalty of 180 days in jail and a $2,000 fine.

  2. BAC equal to or greater than 0.15: Class A Misdemeanor, maximum penalty of 365 days in jail and a $4,000 fine.

Additionally, the State of Texas may impose traffic fines of $3,000 for first-time DWI offenders, which increases to $6,000 if the test result was 0.15 or higher.


For litigants who do not have counsel: Reading this blog post does not create an attorney client relationship. Call to set up a free consultation.


For the general public: This Blog/Web Site is for educational purposes only and it provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that there is no attorney-client relationship created. Don't just read this as a substitute for competent legal advice from a licensed attorney.


For attorneys: This Blog is informational and educational in nature and is not a substitute for Westlaw or other research and consultation on specific matters pertaining to your clients. As you know the law can change day to day based on recent case opinions. And unfortunately you shouldn't cite it in court as binding authority because it is not. Mention it to your friends, just seek real consultation if it’s something important.


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