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Dallas Cowboy Josh Brent DWI Intoxication Manslaughter Trial Provides Lessons in Police Drunk Driving Blood Testing and Privacy Rights

This week, lots of people are following a trial here in Dallas as the intoxication manslaughter criminal trial of recently retired Dallas Cowboy Josh Brent got underway this week. For those of you who don’t know what’s going on here, pro football player Josh Brent and his best friend Jerry Brown, Jr., were in a serious car crash back in December 2012. (Read our earlier post on the case for background.)

police car, police light bar

When that police light bar flashes in Texas, it may mean an arrest not just for DWI but for intoxication manslaughter if someone dies in the crash.

Josh Brent was driving, neither Brent or Brown were wearing seat belts, and the reports are that the two buddies had been having fun at a local Irving nightclub shortly before the accident occurred. Brown died in the crash. Brent has been charged with a crime under the Texas Penal Code where drunk driving that involves someone dying in the crash can result in a more serious charge than a DWI arrest.

Josh Brent is being tried for “intoxication manslaughter” here in Dallas County, which is a serious felony.   If convicted, Brent may face up to 20 years in prison. (For more on felonies and what defendants face if convicted of felonies in Texas, visit our resources page.)

Evidence From the Scene: Testing the Blood Alcohol Content (BAC) of Josh Brent

One key piece of evidence in this case is the BAC level for Josh Brent. The blood lab results were given at trial to be twice the legal limit in Texas (0.18). However, evidence was also provided at trial regarding Brent’s attempts to challenge the legal abilities of the police to take his blood — and with this challenge comes evidence not only in the form of the lab results but both audio tapes of Brent himself as well as testimony of the emergency room nurse who drew his blood regarding Brent’s statements regarding the blood testing.

Josh Brent repeatedly challenged the taking of his blood. Arguments, both legal and factual, are continuing this week in the Josh Brent trial on this key legal issue and may well continue to be addressed in a criminal appeal should Brent be convicted. We’re not going into the nuances of the evidence as it’s still coming into the record in an ongoing criminal case.

However, the notoriety of this Dallas Cowboy Drunk Driving DWI trial does provide a springboard for visiting the current state of Texas DWI laws and how Texas police can take a person’s blood for DWI testing and legally do so within the parameters of the constitutional protections against unreasonable search and seizure.

Right to Privacy, Subpoena Power, and Texas BAC Blood Testing in Drunk Driving Cases

Intoxication is defined by Texas Penal Code Section §49.01 (2)(b) as involving any driver on a Texas road over the age of 21 years who has been tested to have a blood alcohol content (BAC) of .08% or more.

Law enforcement test for Intoxication by using a person’s breath, blood, or urine. Either one of these three bodily tests can provide legal foundations for an Intoxication charge.

Under Texas Penal Code Section 49.01(1), law enforcement will test for the number of grams of alcohol per:

(A) 210 liters of breath;

(B) 100 milliliters of blood; or

(C) 67 milliliters of urine.

If any one of these three tests — blood, urine, or breath — results in lab test results of 0.08 or higher in alcohol concentration, then you can face a charge of legal intoxication under Texas law. You can also be charged as being unlawfully intoxicated if you are without “the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.”

Constitutional arguments often arise regarding the taking of bodily samples from an individual and when this can be done. For instance, the 4th Amendment generally requires a subpoena based upon a sworn affidavit that has been approved by a judge to have sufficient cause to allow (”warrant”) the search and seizure.

However, Texas law enforcement in their zeal to prevent deaths and serious injuries from drunk driving accidents have instituted ways to try and jump this constitutional hurdle. For example, in “No Refusal” campaigns, a Texas county (Dallas, Tarrant, Harris, Bexar, etc.) will publically announce a No Refusal Campaign and then anyone pulled over for suspicion of driving drunk who refuses a blood or breath test will be escorted by police to a place where form orders and a magistrate / judge await the driver. This speeds up the process of getting the judge’s okay to proceed with the blood test despite the driver’s objections and his or her assertions of privacy, due process, etc.

Then it’s up to the criminal defense lawyer to try and challenge the evidence and the process, usually in a “Motion to Suppress.”

Intoxication Manslaughter Charges in Texas

In Texas, there are several laws on the books that will allow prosecutors to pursue manslaughter charges against a driver of a vehicle involved in an accident where someone has perished. Intoxication manslaughter is a serious charge, and something that district attorneys can choose to prosecute in DWI matters. The legal bases for this felony charges include:

  • Texas Penal Code § 19.04;
  • Texas Penal Code 19.05;
  • Texas Transportation Code §521.457; and
  • Texas Transportation Code §545.401.


For more information on when a drunk driving crash can become a murder (manslaughter) case, and what these statutes entail, visit our web resources page discussing Manslaughter and Intoxication Manslaughter.

Also see the Case Results page, which include entries like this one:

Motion to Suppress Granted in Dallas County; .20 Blood Test DWI Case in Dallas County Dismissed where Michael Lowe’s motion to suppress was granted, resulting in all evidence being suppressed because of illegal detention.



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