If someone gets arrested for DWI and is sent to hospital for a blood test, can a defense attorney get those results or is it only available to the prosecuting attorney?

Are both attorneys allowed to get this info? The blood test proves the person is 100% innocent but is being told that they have to wait on the State to get the evidence and they do not seem to be in any hurry. We do not understand why the defense attorney cannot get that evidence too.

Asked on February 15, 2016 under Criminal Law, Texas


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Everything depends on how the blood was taken.  If the blood that the State is relying upon was taken for medical purposes, then a defendant has a right to a copy of their file. So... it's just a matter of going to the hospital and obtaining the records.
If the blood was taken as part of an official 'blood draw' as part of a DWI investigation, then it is a record of the agency. The defense attorney will have the right to obtain a copy of the blood test as part of the discovery process should the case ever be filed.  If the prosecutor sees that the results are negative, then they may decide not to file the charges.  If the charges are filed, then the defense attorney only needs to make a motion for a copy of the report.    The main caveat here is that the case has to be filed so that the defense attorney has a cause number in which to file the motion.  So, yes, the defense can get the report... it just takes a bit longer.

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