SAN ANTONIO – “Fortunately for me, my blood wasn't admissible."
He told his story from the shadows, a man who beat the system and is hoping it won’t catch up to him. He was caught up in one of Bexar County’s so-called “no refusal weekends,” got pulled over, refused to use a Breathalyzer, and law enforcement can take your blood by force. It happened to this man, but because of a blood-testing system some say is fraught with errors, DWI charges were dropped against him. He asked to be disguised because he's afraid of being recharged with drunk driving.
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“I'm just scared of reprisal, I don't want the D.A's office or the police knowing who I am," he said.
He benefited from a system that many at the Bexar County Courthouse say doesn’t work.
"I think the public is being sold a bill of goods,” said DWI defense attorney Joseph Hoelscher.
When it comes to blood testing, the system is broken, those are the words of attorneys who deal with drunk-driving cases in Bexar County. Five attorneys, from five different law firms, agreed to sit down with KSAT and talk about it. This bloody secret isn't well known in the community, but apparently it is at the courthouse.
"If they take a breath test, their bargaining chips are gone, but if they take a blood test they're open, because the D.A. doesn't use blood in the courtroom," said DWI defense attorney, George Scharmen.
"We know these blood tests aren't being used in courtrooms, but we still continue to strap people down to a chair and stick a needle in their arm," said DWI defense attorney, Megan Roper.
Currently there is no credible testing lab in Bexar County that can measure a person’s blood alcohol level, yet law enforcement keeps administering blood draws. The county used to have a lab, Integrated Forensic Laboratories (IFL), their contract was terminated after blood samples were found to be contaminated, and many of the technicians who conducted the testing, failed competency tests. IFL.'s record was so bad that under District Attorney Nico LaHood, the county stopped using the lab all together.
"Stepping all over their liberties and not even using it and knowing that they're not going to use it. I don't see how this has continued for so long," said DWI defense attorney, Sean Simpson.
"With the state of forensic science right now, it's all kind of a sham," said Hoelscher.
These five say another flaw in the system, finding an attorney who can challenge these blood tests can be expensive, meaning justice is often reserved for those who can afford it.
"A lot of people who have the resources to retain an attorney, don't have the resources to retain the experts needed to effectively combat a DWI charge, based on breath or blood test evidence," said defense attorney Adam Crawshaw.
"If you're going to do things to a scientific standard you're going to have to spend money and be serious about it, and we're not," said Hoelscher.
The attorneys told me they estimate in 95 percent of DWI cases, blood tests aren't used, and if local law enforcement wants the blood tested they now have to take it to the DPS lab in Austin, a lab whose results they also question.
"They don't have a good lab right now, the labs they can go to, like DPS, all have issues with their science. This is a statewide problem, not just San Antonio," said Hoelscher.
Ironically, LaHood was once a DWI defense attorney and said the system is fair.
"Blood is only one piece of evidence, our conviction rates went up, we actually got better results from it," said LaHood.
He has seen the issue of blood tests for DWI from both sides and LaHood said he saw the problems with the county's blood lab, Integrated Forensic Laboratories, so he stopped using it. He is surprised these attorneys are making it an issue.
"If we can't go before citizens of Bexar County and say ‘Hey we trust this process’ then we shouldn't do it, it's disingenuous, so these people that you talk about complain about a broken process, in that one aspect, I agree, so I pull it, so I'm doing the right thing in their eyes by pulling the process," said LaHood.
LaHood said the last few months his office has been using blood alcohol test results, but they have to be sent to Austin and the state DPS lab. He admits there is a back log of blood tests, but he believes the process is working.
"It takes about 30 days give or take to get results back, from DPS. So far we've seen no glitches, I mean if there’s something that is brought to my attention that makes me pause again, that makes me think, OK this process is not fundamentally fair, then I'll listen, of course," says LaHood.
The district attorney said he hasn't seen any problems with the DPS lab, but if there are issues he urges the attorneys to come to him and give him specifics, not in his words, "only soundbites."