Driving While Intoxicated Case Law Update - Texas District ...

Biqon v. State, 252 S.W.3d 360 (Tex.Crim.App.2008).
Defendant objected to the state expert's testimony concerning the conversion of appetlant's serumalcohol
levelto a blood-alcohol level and retrograde extrapolation on fhe basrs that said testimony
was not reliable. The Court of Appeals held both were admissible. The Court of Criminal Appeals
held that it was not an abuse of discretion to allow said testimony.
Reidweq v. State, 981 S.W.2d 399 (Tex.App.-San Antonio 1998, pdr. ref'd).
Objection to admitting evidence of serum-blood fesf as opposed to whole blood test overruled as
evidence showed that test instrument was standardized such that serum-blood fesf resu/f would
be the same as if whole blood were tested.
l. HOSPITAL DRAWN SAMPLE = NOT AN ASSAULT
Hailey v. State, 87 S.W.3d 118 (Tex.Crim.App.2002) cert. denied, 538 U.S. 1060 (2003).
Defendant arrested for DWl. The evidence at the time of arresf showed that defendant was: 1)
Bouncing off guardrail; 2) Crossing into oncoming traffic; 3) PBT administered atthe scene showed
an alcohol concentration of .337. Officer, fearing there may be Alcohol Poisoning transported
defendanttothe hospital. Defendantwas read the DIC-24 and refused to give a sample. Hospital
drew a medical sample that showed a .454. Court of Appeals held that blood was illegally taken
and that the taking of the blood sample constituted an assault on the defendant by the hospital
personnel. The problem was that no wifness was called from the hospital to say why the blood was
taken. The Court of Criminal Appeals held that it was improper for the Court of Appeals to
reverse fhe case based on a theory not presented to the trial court (that being the hospital
assault issue) and so reversed the Court of Appeals decision affirming the trial court's
finding that the blood sample was admissible.
Spebar v. State, 121 S.W.3d 61 (Tex.App.-San Antonio, September 3, 2003, no pet.).
Another case where the blood sample was drawn by hospital personnel after the defendant refused
to give the police a sample. As in the case above, the defendant claims the evidence was
inadmissible because it was obtained when the hospital illegally assaulted him. This claim was
rejected by the Trial Court. The defendant cites the Court of Appeals opinion in the Hailev case.
The Court first distingur.shes Hailey by pointing out that the trial judge in its ruling stated that this
was not a case of law enforcement taking a blood sample but rather blood taken as part of the
defendant's medicaltreatment. The Courtfurther rejectsthe defendant's argumentthatthe hospital
personnel were agents of the Sfafe.
J. ACQUIESCENCE TO HOSPITAL BLOOD DRAW = GONSENT
State v. Kellv, 204 S.W.3d 808 (Tex.Crim.App., 2006).
ln response to the objection to the admissibility of a medical blood draw where the defendant
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