In DUI case there are three types of tests that can be taken to see if a person is under the influence of alcohol of drugs. The three tests are a breath test, urine test, and blood test. A blood test is the most invasive of the three tests. It is also the most useful for police compared to the other tests. A blood test will determine the amount of alcohol in your system along with any drugs or medicine you have taken.
As the most invasive test, there are limited situations where the police can take your blood. A DUI lawyer can help you if the police wrongfully took your blood. At Keller, Melchiorre & Walsh we are one of the few firms that has three former DUI prosecutors. We can help you fight your DUI blood test case.
When can the police take your blood?
There are three situations when the police can obtain your blood for a blood test. First, is when you voluntarily consent. Anytime you voluntarily consent to a blood test the police can legally draw and test your blood.
Second, the police can obtain your blood for a test when you are the suspect in a DUI crash case involving serious bodily injury or death. The most common question in this scenario is what constitutes serious bodily injury. Serious bodily injury is difficult to determine at the scene of the DUI accident being investigated. Additionally, a police officer is not a doctor. As such, the investigating officer's knowledge at the scene is what matters. If it reasonably appears to the officer that the victim has a serious injury, then he can draw blood from the DUI suspect. In this scenario, you cannot refuse a blood test as the police are allowed to use force to obtain the blood.
Third, the police can obtain your blood under the implied consent law. Under Florida Statute 316.1932(1)(c), when the police suspect a person of a DUI crash and they appear for medical treatment at a hospital, clinic or other medical facility; the police can ask for a blood sample when breath or urine is impractical or impossible. This scenario is the most common following a crash. Paramedics will arrive after a crash and transport the driver to the hospital. The police officer does not know how long the DUI suspect will remain at the hospital making the breath or urine test impractical or impossible.
Can you fight the blood test? How do you fight the blood test?
You can fight the blood test. There are several ways to challenge it. First, if the blood is taken in a scenario that is not described above, your attorney can file a Motion to Suppress the blood test results. Even when the office writes the scenario in his report as to why he believes he can take a blood sample; your attorney can challenge the officer's perspective. Police officer are human and make mistakes just like anyone else. More importantly, officers will try to write reports to fit their narrative. Their narrative is to try to support their investigation and DUI arrest. A skilled DUI lawyer can surgically dissect a police officer's report in these situations.
Another way to fight the blood test is that the blood must only be taken by a person authorized and trained to take a blood sample. Your lawyer can challenge the blood test if the person that took the blood is unqualified.
The blood must be drawn by a certain size needle. If the wrong sized needle can destroy red bloods cells creating a condition called hemolysis. In short, this can affect the blood alcohol reading.
There can be a chain of custody problem with the blood sample. Chain of custody refers to the documented people who have taken and handled the blood sample. If the handling of the blood sample is not properly documented, it can be thrown out.
The machine that analyzes the blood sample is called a gas chromatograph. The gas chromatograph must be used by a someone certified and properly trained. Additionally, the gas chromatograph must be properly calibrated.
The blood must be properly stored. When the blood is not properly stored the results can be affected.
These are just a few of the several legal ways that a DUI defense lawyer can fight the DUI blood test.
Can the police take your blood if you are unconscious?
Yes, the police can take your blood when you are unconscious. However, there are other requirements as described about that must be met before the police can just take your blood because you are unconscious.
Why would the police want a blood test instead of a breath test or urine test?
Blood tests are much more informative for police than either breath or urine tests. Blood is more informative than breath tests because breath tests only determine alcohol content. They do not determine if any drugs were consumed.
Blood tests are more informative than urine tests because urine tests do not test for alcohol. Also, urine test cannot determine the amount of drugs consumed, when they were consumed, or if they are still active in the persons system.
Can you ask for a blood test?
It depends on the situation. If you are under arrest for DUI, you can request a blood draw. However, you must first provide a breath sample if one is requested by the police prior to you being allowed to do a blood draw.
If your blood was drawn by the police and tested, then any left-over blood can be sent to an independent lab to be tested. Your DUI lawyer will be able to have the remaining blood sent to an accredited independent lab.
Can you be charged with a DUI when there is blood test, but no field sobriety tests?
Yes. Many times, there is a blood test because a person was transported to a hospital and there were no field sobriety tests taken. If the blood tests reveal a blood alcohol level of above .08, then field sobriety tests are not needed. In situations where there is no alcohol or it is below .08, it is more difficult to be charged with a DUI without other evidence of impairment. The evidence of impairment will not be the field sobriety exercises, but it could be a driving pattern before an accident or a 911 call recording from a witness.
Blood tests are highly invasive. As such, Judges highly scrutinize DUI cases where the police take blood tests. We know the sensitivity and invasion of privacy that occurs when anyone is subjected to a blood draw by the police. At Keller, Melchiorre & Walsh we have successfully litigated DUI blood cases and have filed and won motions to suppress blood tests. If your DUI lawyer can throw out the blood test, you will get a better result in your DUI blood case.
Call us at (561)295-5825 to see how we can help you. Call now to schedule a free consultation.