The Woodlands DWI Lawyer

You have rights protected by the Constitution which do not go away once you are accused of DWI in The Woodlands. In fact, those rights are more important than ever when you find yourself faced with a DWI charge. Giving up any of those rights is never a good idea, especially if you do so by accident. Call (832) 426-3913 to speak with a Woodlands DWI lawyer and take the first step in protecting your rights today.

Timi Yvette Herring accidentally gave up one of her important Constitutional rights and let’s take a look at how it helped her get convicted and lose her appeal.

Background

Officer Kris Tyler stopped Herring for running a stop sign. He smelled alcohol on Herring’s breath and noticed Herring’s eyes were bloodshot and watery. According to Tyler, Herring admitted she had been drinking and failed field sobriety tests. Herring consented to a breath intoxilyzer test, but the result showed “interference.” After Herring consented to a blood draw, Tyler transported her to a local hospital and requested a blood draw.

On July 30, 2007, the State gave notice to Herring that a certificate of analysis and chain of custody affidavit (the affidavit) for Herring’s blood test results had been filed. Herring did not file any objections to the affidavit or the results of the blood test. At trial on September 18, 2008, the State offered the affidavit and a laboratory report indicating the results of the testing performed on the sample of Herring’s blood showed a blood alcohol level of 0.12. Among other objections, Herring objected the blood test results violated her right to confront the witnesses against her and that the State failed to lay the proper predicate for admission of the results by failing to establish a registered nurse in good standing conducted the blood draw. The trial court admitted the results of the blood test and found Herring guilty.

Confrontation Clause

Herring asserts the admission of the blood test results and the affidavit violated her right to confrontation under the Sixth Amendment to the United States Constitution.

The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.” U.S. Const. amend. VI. This procedural guarantee bars the admission of testimonial statements of a witness who does not appear at trial unless the witness is unavailable to testify and the defendant had a prior opportunity to cross- examine the witness. Affidavits reporting the results of forensic analysis are testimonial statements, and the analysts who performed the tests are witnesses for purposes of the Sixth Amendment.

Therefore, absent a showing the analyst was unavailable to testify at trial and that the defendant had a prior opportunity to cross-examine the analyst, a defendant is entitled to be confronted with the analyst at trial. However, a state may enact procedural rules in the form of notice-and-demand statutes that “require the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst’s appearance live at trial.”

Texas’s notice-and-demand statute is contained in articles 38.41 and 38.42 of the code of criminal procedure. Certificates of analysis of physical evidence and chain of custody affidavits are admissible without a witness appearing at trial if they are filed and served on the opposing party more than twenty days before trial begins and the opposing party does not file a written objection by the tenth day before trial begins. A defendant waives any objection under the Confrontation Clause to the admissibility of the certificate of analysis or chain of custody affidavit by failing to timely object under the statute.

Here, the State filed the blood test results and the affidavit more than twenty days before trial began. Herring did not timely object to the affidavit or the blood test results. Accordingly, she waived any objection that the admission of the affidavit or the blood test results addressed by the affidavit violated her confrontation rights.

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Don’t let this happen to you. Call The Woodlands DWI Lawyer at (832) 426-3913 and protect your rights today.