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  #1  
Old 01-18-2012, 08:41 AM
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Default DWI Blood alcohol test results

Significant or not, depends on which side of the fence you are on. APD say's a 20% difference in blood test results are "insignificant" ok well now, suppose the first result was 0.090, 20% of that result is 0.018 so 0.090 minus 0.018 = 0.072. That the differnce between legal and below legal. It can be a difference of a felony on your record or guilty or not guilty

I don't know about you, but to me this is VERY significant!!!
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Old 01-18-2012, 04:48 PM
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And if the results are that close a decent lawyer can probably beat the blood work case if the state doesn't have enough information to extrapolate. So, never drink and drive but if you ever get pulled over and the officer starts asking questions like "when was the last time you ate?" then it is time to sit down and shut up.
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Old 01-18-2012, 10:22 PM
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Why wouldn't this work? If you feel that you are pretty close and are driving and get stopped, just act like you are stuffing something under the seat as the officer walks up. Or slam the ash tray shut just when he is getting there. Make him think there might be drugs in the car. Then of course refuse the search. He will call the drug dog unit, maybe it will be pretty far away and that would at least buy you more time, and if the dog hits and they do search even more time!

Another thing you could do is be sure to botch the story about where you are headed, they always say that the suspect did that in the drug seizure case appeals that I have read. "Suspect said he was going to Houston to see a friend, could not come up with the name of the friend".

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Old 01-19-2012, 06:50 AM
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And if the results are that close a decent lawyer can probably beat the blood work case if the state doesn't have enough information to extrapolate. So, never drink and drive but if you ever get pulled over and the officer starts asking questions like "when was the last time you ate?" then it is time to sit down and shut up.
You are right Royce, but the problem being that not everyone can afford a lawyer, let alone a good one. I have learned more about blood work than I ever wanted to know during my son's case.

You better believe though that when you do get pulled over every question the officer is asking you, he is gathering information to be used against you. From the most simple questions, as Royce said, when your last meal was eaten to when you had your last drink, how many you had, and on and on. This information will help with extrapolation. The officer is looking at everything, so you best not help them along in getting you convicted of a DWI.

Driving while intoxicated is wrong on every level, I am just saying there are other circumstances where you get arrested and find yourself convicted of a DWI, especially if you have priors, they will run your record and proceed from there building the case. I don't think there are many questions you have to answer anyway, and I believe you do not have to take the FST or breathalizer.
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Old 01-19-2012, 01:06 PM
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I served on a jury for a DWI trial a couple of years ago and after the trial, the defendant's lawyer asked to speak to us. He was specializing in Texas DWIs and wanted to ask us some questions for his future reference about what he had done right and wrong during the trial.

In the course of the discussion he told us that if we were ever pulled over on suspicion of DWI to never take the field sobriety tests or breathalizer and not to answer any questions from the officer. He told us to very politely say "I'll do anything the state of Texas requires me to do, but I won't take the tests (or breathalizer)." (You are not required to do either.)

He warned us that doing that would give us an automatic license suspension and most likely get us arrested and taken to jail for a forced blood test, but that would of course require time to get the order from the judge, etc. He pointed out that besides buying a little time, that also gives the prosecution much less evidence to work with if they do say that you're over the .08 limit. Since many officers aren't properly trained in conducting the FST and since even many sober people can't pass the tests, you don't want to take the chance of giving the police anything on tape that may make it look like you are "under the influence".

I write all that in an effort to remind people of their right to take care of themselves when in a difficult situation since I think the instinct for many of us is to "cooperate", thinking that is the best thing to do. But we have to remember that the officer isn't trying to help us, so we have to protect ourselves. He or she most likely isn't going to tell us that we don't have to take the tests or answer questions, so we have to educate ourselves.

As montysmom said, it is NEVER okay to drink and drive, but human beings sometimes make mistakes, and if that happens, we need to know our rights in the situation.

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Old 01-19-2012, 04:22 PM
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Just a note that although the procedure to suspend a persons drivers license for refusing to provide a sample of blood or breath is automatic, the conclusion is not. On the paperwork that the arresting officer gives to you will be instructions on how to request a hearing on the action. This hearing should be requested, everybody has that right. If you retain an attorney they will usually request the hearing for you and will represent you to the Admisitrative Law Judge presiding over the case. It will be the outcome of that hearing that determines whether or not your license is suspended.

Not so long ago I was pulled over and shaken down for suspiscion of DWI. I refused all tests and, predictably, they took me to have blood drawn. In the end the case was properly dismissed but be warned that it costs plenty money to hire an attorney that can properly deal with a blood work case ... and it really, really helps to not be legally intoxicated in the first place. Anyway, due to not blowing I received the notice and promptly requested the hearing. Several months later my attorney attended the hearing, the arresting officer did not and the ALJ did not suspend my license.

Since I've let this little cat out of the bag I'll post that exactly what montysmom raises a concern about in this thread applied in my case. BAC of 0.088 is what they came up with. They had no chance to extrapolate because I gave them nothing. I dropped a bundle on someone that turned out the be exactly the right attorney who eventually subpoena'd all the blood lab data. Anyone can subpoena the data but few attorney's can look it over themselves and spot problems. Others will need an expert to be hired to analyze what comes back if they are even willing to go there. If you go to trial on a blood work case an expert must be retained in any case for an argument against the results to be entered into evidence as testimony. Anyway, in the data that came back on my case my attorney found two errors that dropped the actual BAC results down so far that the DA could not, in his words "get there" meaning to the level of 0.08 required to convict once the errors were taken into account.

Let me tell you that what it cost me to hire this attorney hurt pretty bad. I did not have the cash and had to take the money out on loan. I was not legally drunk, not really even close, but the state cost me a night in jail, bail money for both me and my vehicle, about 8 months of anxiety, as many mornings taken off from work to make court dates and a large debt in order to prove the "overzelousness" (if that's a word) of the officer that was bound and determined to make a DWI case just because I was out on the road at a late hour.
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Old 01-19-2012, 05:20 PM
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Originally Posted by Y25 View Post
I served on a jury for a DWI trial a couple of years ago and after the trial, the defendant's lawyer asked to speak to us. He was specializing in Texas DWIs and wanted to ask us some questions for his future reference about what he had done right and wrong during the trial.

In the course of the discussion he told us that if we were ever pulled over on suspicion of DWI to never take the field sobriety tests or breathalizer and not to answer any questions from the officer. He told us to very politely say "I'll do anything the state of Texas requires me to do, but I won't take the tests (or breathalizer)." (You are not required to do either.)

He warned us that doing that would give us an automatic license suspension and most likely get us arrested and taken to jail for a forced blood test, but that would of course require time to get the order from the judge, etc. He pointed out that besides buying a little time, that also gives the prosecution much less evidence to work with if they do say that you're over the .08 limit. Since many officers aren't properly trained in conducting the FST and since even many sober people can't pass the tests, you don't want to take the chance of giving the police anything on tape that may make it look like you are "under the influence".

I write all that in an effort to remind people of their right to take care of themselves when in a difficult situation since I think the instinct for many of us is to "cooperate", thinking that is the best thing to do. But we have to remember that the officer isn't trying to help us, so we have to protect ourselves. He or she most likely isn't going to tell us that we don't have to take the tests or answer questions, so we have to educate ourselves.

As montysmom said, it is NEVER okay to drink and drive, but human beings sometimes make mistakes, and if that happens, we need to know our rights in the situation.
I agree with most of this and the advice the lawyer gave is pretty much right, but you are not buying yourself time with delaying blood draw, you are only waiting for the alcohol to reach a higher level, especially if you eat, the ingestion of food can slow down the absorption of alcohol into one's system.

I would also like to add that I stated it is never ok to be intoxicated and drive. Drinking and then driving is not against the law.

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Old 01-19-2012, 05:34 PM
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Just a note that although the procedure to suspend a persons drivers license for refusing to provide a sample of blood or breath is automatic, the conclusion is not. On the paperwork that the arresting officer gives to you will be instructions on how to request a hearing on the action. This hearing should be requested, everybody has that right. If you retain an attorney they will usually request the hearing for you and will represent you to the Admisitrative Law Judge presiding over the case. It will be the outcome of that hearing that determines whether or not your license is suspended.

Not so long ago I was pulled over and shaken down for suspiscion of DWI. I refused all tests and, predictably, they took me to have blood drawn. In the end the case was properly dismissed but be warned that it costs plenty money to hire an attorney that can properly deal with a blood work case ... and it really, really helps to not be legally intoxicated in the first place. Anyway, due to not blowing I received the notice and promptly requested the hearing. Several months later my attorney attended the hearing, the arresting officer did not and the ALJ did not suspend my license.

Since I've let this little cat out of the bag I'll post that exactly what montysmom raises a concern about in this thread applied in my case. BAC of 0.088 is what they came up with. They had no chance to extrapolate because I gave them nothing. I dropped a bundle on someone that turned out the be exactly the right attorney who eventually subpoena'd all the blood lab data. Anyone can subpoena the data but few attorney's can look it over themselves and spot problems. Others will need an expert to be hired to analyze what comes back if they are even willing to go there. If you go to trial on a blood work case an expert must be retained in any case for an argument against the results to be entered into evidence as testimony. Anyway, in the data that came back on my case my attorney found two errors that dropped the actual BAC results down so far that the DA could not, in his words "get there" meaning to the level of 0.08 required to convict once the errors were taken into account.

Let me tell you that what it cost me to hire this attorney hurt pretty bad. I did not have the cash and had to take the money out on loan. I was not legally drunk, not really even close, but the state cost me a night in jail, bail money for both me and my vehicle, about 8 months of anxiety, as many mornings taken off from work to make court dates and a large debt in order to prove the "overzelousness" (if that's a word) of the officer that was bound and determined to make a DWI case just because I was out on the road at a late hour.
The actions you took on this Royce is exactly what a person should do, but the sad fact is most people think because they are dealing with the law that they have to follow all instructions given and that by doing so they can gain their freedom. Most likely if they have probable cause and it has proceeded to the asking if you are giving blood/breathalizer, you are going to jail. The state is pressured to convict all who come before them on DWI charges, but they have to prove you were intoxicated while driving. Do not help them do so.
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Old 01-19-2012, 10:09 PM
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I agree with most of this and the advice the lawyer gave is pretty much right, but you are not buying yourself time with delaying blood draw, you are only waiting for the alcohol to reach a higher level, especially if you eat, the ingestion of food can slow down the absorption of alcohol into one's system.

I would also like to add that I stated it is never ok to be intoxicated and drive. Drinking and then driving is not against the law.
I like to have a margarita with food sometimes, but won't do so if I am driving, because I always wondered. My husband talked to a guy the other day that said he had a drink with food, and stopped and was worried too and refused the breath test but he did take the field sobriety test and although the officer told him he had done it very well, they still ended up suspending his license. You can't win with the field test, it's designed to make you look drunk I think.

I ran the numbers as best I could and determined that I might end up at 12 after an hour, after 2 hours I would be clear, these numbers are without food though I didn't realize it might actually keep rising if you had eaten food. And I am not real sure on the alcohol in the margarita.

Think I will stick to just not having that margarita. My luck I would get stopped by the officer that keeps the drug dog with him anyway.
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Old 01-20-2012, 08:14 AM
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I like to have a margarita with food sometimes, but won't do so if I am driving, because I always wondered. My husband talked to a guy the other day that said he had a drink with food, and stopped and was worried too and refused the breath test but he did take the field sobriety test and although the officer told him he had done it very well, they still ended up suspending his license. You can't win with the field test, it's designed to make you look drunk I think.

I ran the numbers as best I could and determined that I might end up at 12 after an hour, after 2 hours I would be clear, these numbers are without food though I didn't realize it might actually keep rising if you had eaten food. And I am not real sure on the alcohol in the margarita.

Think I will stick to just not having that margarita. My luck I would get stopped by the officer that keeps the drug dog with him anyway.
There are variables, such as weight, and gender, but the normal body metabolizes one drink (one drink equals 1 oz of 100 proof liquor, one five ounce glass of wine, or one 12 oz. bottle of reg. beer) an hour. It takes about 30-45 min. for each drink to reach it's highest blood alcohol level.

Other factors, such as intake of food, how your liver metabolizes are some other variables.
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Old 01-20-2012, 01:07 PM
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I have a simple answer DON'T DRINK AND DRIVE. Why cause the problems. Some counties have a blanket warrent that allows them to take you in for a blood test.. The best way to beat something like that is again don't drink and drive.
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Old 01-20-2012, 03:07 PM
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I know the above post was not specifically directed at me, but I would like to say that I will never have the problem of getting a DWI, as I do not drink at all....EVER, but if I did, and I wanted to have a drink with a meal, I don't feel like I should have to worry about getting possibly arrested and blood drawn and wether the test was skewed or chain of custody was not followed etc. That is why we have laws and rules about the BAC and how the tests should be conducted.
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Old 01-20-2012, 10:14 PM
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Yeah not even drinking a drop is the sure way to not end up having to spend a fortune most likely, so if you drink nothing you will be ok until the next thing comes along that public hysteria drives the political system over the edge on.

I do not condone drunk driving, I also do not condone this system that we have where they are out to convict everyone possible and if the courts have already ruled on something they will prosecute you on it anyway hoping that you do not have the money for a lawyer that is good enough to figure out how the courts have already ruled.
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Old 01-21-2012, 10:31 AM
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It was not aimed at anyone. Its just we all forget that driving is not a right its a privalege. I do drink and when I was much younger I came upon a accident that involved a drunk driver. From that point on if I drink I don't drive.
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Old 01-21-2012, 11:16 AM
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My original post was talking about the validity of blood tests and wether 20% mattered. If .08 is the percentage set forth by law, then everything possible should be done to follow the guidelines when testing the bloodwork, there should not be guesswork, and in my opinion the labs where the blood is tested should be seperate and independant of law enforcement. Anyone that wants a blood split done and independant lab testing should be allowed to do so.
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Old 01-23-2012, 06:59 AM
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The actions you took on this Royce is exactly what a person should do, but the sad fact is most people think because they are dealing with the law that they have to follow all instructions given and that by doing so they can gain their freedom. Most likely if they have probable cause and it has proceeded to the asking if you are giving blood/breathalizer, you are going to jail. The state is pressured to convict all who come before them on DWI charges, but they have to prove you were intoxicated while driving. Do not help them do so.
My purpose in going ahead and posting that story was to underscore your original point that people are arrested fro DWI when they are not DWI and most people would be screwed as soon as that happened. There is a complete assumption by all law enforcement involved that not only the officers sobriety tests are without flaw but also the processes and devices that they use to measure Blood Alcohol Content. This was the original point of the thread and the only reason I put my own experience out there. I was a person that was NOT DWI yet the PD's blood test was inaccurate (is it any surprise in which direction it was inaccurate???), just as you posted, but because I had the means to employ an attorney that knew what he was doing I was able to expose the inaccuracy and my innocence of DWI. By the way, I may not have done their dog and pony show on the side of the road but they had about 20 minutes or more of tape of me walking and talking and speaking with the cop and when my attorney saw and heard me he was all smiles because no reasonable person could watch that video and come to the conclusion that I had even been drinking, never mind was drunk. They had no case but that cop just HAD to run me in.

Think proving one's innocence comes cheap? It cost me over $10,000 to do so. That hurt our finances pretty damn bad and I'll be spending the next couple of years trying to pay that off. Even after the blood test was proven inaccurate I had to take the case all the way down to setting it for trial. Only then did the DA's office finally drop the case. They knew the BAC was bad. They knew they had no case from the video or FST's. Yet they still wanted that conviction if they could get it because I was afraid to go to trial.
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Old 01-23-2012, 07:16 AM
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I have a simple answer DON'T DRINK AND DRIVE. Why cause the problems. Some counties have a blanket warrent that allows them to take you in for a blood test.. The best way to beat something like that is again don't drink and drive.
How about being responsible? I was not even close to the 0.08 mark yet I went to jail and you see above the money it cost and I didn't even mention all the time off from work I had to take and the anxiety and worry I suffered. Only thing I had to beat was an overzealous cop that cared more for making an arrest that he did for his own integrity, a blood lab that did bad or dishonest work (Anyone remember the Houston crime lab debacle? The reason for that dishonesty still exists because of LE's expectation of successful prosecutions) and a prosecution system that is geared top to bottom to assume guilt upon arrest. Do you actually think that the blood results just accidentally happened to be in error such as to indicate guilt rather than innnocence?

Edited to add, if this sounds agry it is not meant to be. Due to this and other instances I can manage some passion about this subject but is a passion also temperred by feelings I have from the other perspective. I have felt the pain of loss of a loved one and injury to others due to drunk driving.
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Old 01-23-2012, 09:16 AM
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My purpose in going ahead and posting that story was to underscore your original point that people are arrested fro DWI when they are not DWI and most people would be screwed as soon as that happened. There is a complete assumption by all law enforcement involved that not only the officers sobriety tests are without flaw but also the processes and devices that they use to measure Blood Alcohol Content. This was the original point of the thread and the only reason I put my own experience out there. I was a person that was NOT DWI yet the PD's blood test was inaccurate (is it any surprise in which direction it was inaccurate???), just as you posted, but because I had the means to employ an attorney that knew what he was doing I was able to expose the inaccuracy and my innocence of DWI. By the way, I may not have done their dog and pony show on the side of the road but they had about 20 minutes or more of tape of me walking and talking and speaking with the cop and when my attorney saw and heard me he was all smiles because no reasonable person could watch that video and come to the conclusion that I had even been drinking, never mind was drunk. They had no case but that cop just HAD to run me in.

Think proving one's innocence comes cheap? It cost me over $10,000 to do so. That hurt our finances pretty damn bad and I'll be spending the next couple of years trying to pay that off. Even after the blood test was proven inaccurate I had to take the case all the way down to setting it for trial. Only then did the DA's office finally drop the case. They knew the BAC was bad. They knew they had no case from the video or FST's. Yet they still wanted that conviction if they could get it because I was afraid to go to trial.
The points you bring up is exactly why my son is incarcerated right now, he made the mistake of doing the FST (and who is scoring that test, the one that is going for a DWI conviction!!)

I am in no way condoning being intoxicated and driving, if my son had truely been drunk and the test done correctly and without a doubt shown that he was drunk, then I would be the first one to say "take him to jail".

It's the underhanded way they twist things around to make it look in their favor, and the scare tactics they use to make you not want to take it to trial..............oh yeah, and the money it would cost to prove your innocence. BS
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Old 01-26-2012, 03:47 AM
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I don't drink(maybe once a year-never drive after drinking) so whether I would be intox and driving is not a question, but I would still refuse the FST simply because I would fail it. I am a clumsy and at times, unfocused person. I don't see a reason not to take the brethilizer, though.
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Old 01-26-2012, 04:15 AM
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Why wouldn't this work? If you feel that you are pretty close and are driving and get stopped, just act like you are stuffing something under the seat as the officer walks up. Or slam the ash tray shut just when he is getting there. Make him think there might be drugs in the car. Then of course refuse the search. He will call the drug dog unit, maybe it will be pretty far away and that would at least buy you more time, and if the dog hits and they do search even more time!

Another thing you could do is be sure to botch the story about where you are headed, they always say that the suspect did that in the drug seizure case appeals that I have read. "Suspect said he was going to Houston to see a friend, could not come up with the name of the friend".
Probably not a good idea to advise someone to do all that. Refuse the search...really? Come on now, I think there's better ways to deal with stuff like this....like maybe not driving if you've been drinking. But hey, that's too much like right.

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Old 01-26-2012, 04:44 AM
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My original post was talking about the validity of blood tests and wether 20% mattered. If .08 is the percentage set forth by law, then everything possible should be done to follow the guidelines when testing the bloodwork, there should not be guesswork, and in my opinion the labs where the blood is tested should be seperate and independant of law enforcement. Anyone that wants a blood split done and independant lab testing should be allowed to do so.
Here in CA, if a person is arrested for DUI by the Highway Patrol, their blood (if they take a blood test) is sent out to an independent lab that is separate from the department. The results are sent straight to the DA and added to the arresting officers report. My friend is a Highway Patrol officer, that's how I know this

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  #22  
Old 01-26-2012, 09:32 AM
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RobinsMan RobinsMan is offline
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Quote:
Originally Posted by x4livin View Post
...I don't see a reason not to take the brethilizer, though.
You have more trust in the honesty of law enforcement than I do. They can and do bias those tests. They also often fail to maintain the equipment properly such that false results are generated and even if they do not actively work to bias the machine they can, either through simple negligence or satisfaction with results that get them convictions, allow a machine to favor their ends which is arrests and convictions.

My feeling is that a breathalizer is usually under direct control and in the hands of those that can and will manipulate it to meet their end goal. Make no mistake, if you are under arrrest then they have already decided that you are guilty and the vast majority of cops consider anything they do to make sure you are convicted is justified. It is more expensive to fight blood test results but my feeling is that it is harder for the cops themselves to take a hand in the results so maybe you get a lab that is more honest.

Dig this, not so long ago the city of Pasadena built a brand new building to house their police department and along with it they funded a brand new crime lab ... in the same building. Yes, the people in the lab work every day with the cops, they say hello to them in the hall, probably go out to lunch, maybe belong to the same family - even married - and perhaps name their God children after each other. This crime lab accepts lab work from any municipality in the area, for a fee. It is good business to make sure that customers get their money's worth. Besides, we certainly would like to pay off that big fat bond issue that paid for the building and get into the black by starting to actually turn a profit.

After Robin blew a zero three times in a row on their breathilizer they decided to go draw some blood. Arresting officers words to her this last time were "I'm going to hang you one way or the other." They won that time because we did not go through blood work discovery after the big money attorney we hired basically refused to do so and ... well, I'll not air it out anymore but I've got a real problem with the scuzz that is the fuzz in Pasadena.
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  #23  
Old 01-26-2012, 09:53 AM
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Don't know if this is true or not, but I read where a DWI conviction will "fatten the wallet" of the arresting officer. (Just another incentive)

Do you see folks where this is all slanting????
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