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Recalled Test Tubes Could Result in Grounds for DWI Conviction Appeals

 Posted on August 26, 2021 in Criminal Defense

Tarrant County DUI Defense AttorneyUnder Texas law, if a driver has a blood alcohol concentration level of 0.08 percent or higher, they are considered legally intoxicated. In order to measure that concentration, police will usually take a breathalyzer test at the scene and may request or obtain a warrant for the driver to submit to a blood test for a more accurate reading. It was recently announced, however, that a medical supply company’s recall of test tubes used in the blood tests may put the results of hundreds of DWI blood tests in Texas in jeopardy.

Recalled Test Tubes

In 2019, the manufacturer issued a recall notice for a total of 247,000 test tubes because there was a concern that some of the tubes in that lot were missing preservative powder. The preservative powder is a critical component in the testing process because it is supposed to keep the blood alcohol level from changing before the blood in the tube is finally tested in a lab. In the notice, the company stated that blood alcohol levels could be “either falsely low or falsely high” if the preservative is missing.

At the time of the recall, the company urged any agency using the tubes to immediately review the inventory they had and return the tubes subject to the recall.

Unfortunately, by the time many Texas police departments heard about the recall, many of the tubes were already in use. According to one Texas news station, their investigation into the issue revealed that there were more than 2,700 DWI cases where a recalled tube was used to justify the arrest of a suspected drunk driver. Although it has been two years since the recall, many of these cases have not gone to court yet because of the backlog in the courts’ systems due to the COVID-19 pandemic.

The news station’s investigation also found almost 50 cases where the DWI blood tests used the recalled tubes even after local police departments had been warned by the Texas Department of Public Safety of the recall and to stop using the test tubes.

Possible Appeals

Some district attorney offices have already begun sending notices out to people who were convicted of DWI to let them know that recalled tubes were used in their cases. This information could give these convicted DWI drivers grounds for an appeal. One potential issue that appears in many of these cases is that although police officers are supposed to check and note on the police report that they have checked the powder in the test tube prior to administering the test, many of these particular cases do not contain that written confirmation by officers who submitted the police reports.

Contact a Collin County Defense Attorney Today

If you receive a letter notifying you that a defective test tube was used in your DWI blood test that resulted in a DWI conviction, you may have possible grounds to appeal the conviction. These may result in complex cases, so it is important to have a skilled Plano, TX DWI lawyer representing you. Call The Crowder Law Firm, P.C. today at 214-544-0061 to schedule a free and confidential consultation.




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