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Challenging Blood Tests in a Virginia DUI Case

Blood tests taken as part of your DUI are sometimes performed incorrectly and can be inaccurate even when done properly. These tests are designed to determine whether a person was intoxicated when he or she was behind the wheel, but all too often these tests create a false positive.

Never assume that just because you are charged with a crime, that you are guilty. With the help of experienced Virginia DUI attorney Bryan J. Jones, you can raise a number of different defenses to protect your rights. The charges could potentially be reduced or even dismissed. Do not give up hope or your right to defend yourself.

Blood Testing Procedure

Blood tests are often given to individuals suspected of driving under the influence (DUI) of drugs or alcohol. However, blood tests must be performed according to certain restrictions under Virginia law, namely, Virginia Code 18.2-268.5.

Only certain professions may complete the blood test:

  • a physician,
  • a registered nurse,
  • a licensed practical nurse,
  • a phlebotomist,
  • a graduate laboratory technician, or
  • a technician or nurse designated by order of a circuit court.

The licensed professional is then required to use a cleansing agent to clean the part of the body from which blood will be drawn (usually the arm) and use properly sterilized materials to draw the blood. This sterilization requirement is designed to prevent contamination of the test results, but more importantly, to protect the health of the person undergoing the DUI blood test.

Once the blood is drawn, it is transported to the Department of Forensic Science to undergo testing. Specific requirements are also imposed on this process:

  • blood must be placed in approved vials;
  • the vials must be properly sealed;
  • certificate of blood withdrawal forms must be completed and attached to each vial;
  • each vial must show the individual's name, the name of the person who took the blood, the officer's name, and the date and time of the sample;
  • the vials must be placed in approved containers and appropriately sealed; and
  • the sample must be delivered properly to the Department of Forensic Science.

Once the blood has been tested, the Department of Forensic Science will generate a report that will identify the person's blood alcohol content (BAC).

Any deviation or error in the above process could impact the integrity of the blood sample and the subsequent blood test results. As such, your attorney can challenge the blood test as evidence.

When Blood Tests Are Used

Blood tests are used in place of DUI breath tests in a number of different scenarios. First, when an officer suspects that a person is under the influence of drugs, rather than alcohol, a blood test will be used. Breath tests cannot detect the presence of drugs. Blood tests can. This means that law enforcement officers will frequently request blood tests in addition to or instead of breath tests.

Blood tests also may be used when a person is unable to give a breath test for some reason. Reasons a person may be unable to give a breath test include but are not limited to:

  • the person is too intoxicated to focus on giving the breath test;
  • the person is unable to follow the directions given by law enforcement;
  • the person is medically unable to blow into the device; or
  • the person is passed out for any number of reasons, one of which could be intoxication.

Refusal to Consent to Blood Tests

There are consequences for refusing to take a blood test after one is requested by a law enforcement officer. Under Virginia's implied consent law, a lawfully arrested driver impliedly consents to have both his or her breath and blood tested.

Refusal to comply can result in sanctions, including:

  • First Time Refusal: Loss of driver's license for one year.
  • Second Time Refusal or Previous DUI Conviction (within 10 years): Possible six months in jail and/or a fine of up to $1,000.
  • Two Prior Refusals or DUI Convictions (within 10 years): Possible 12 months in jail and/or a fine of up to $2,500.

There are exceptions where refusal can be lawful, but they are very limited. 

Inaccurate Test Results

A DUI blood test can be inaccurate for a number of reasons. Many times, this inaccuracy is related to the fact that the blood test was improperly performed, as above-mentioned. When the test is improperly performed, the sample could have been contaminated or the results could have been skewed. This can create a situation where a falsely heightened BAC is found or the presence of drugs is detected where none was present.

The same can be true from contamination at the Department of Forensic Science. The Department is testing substances, including drugs and alcohol, all day long. Contamination of a sample is not unheard of, or samples can be accidentally switched. If the Department of Forensic Science failed to properly account for and test the sample all the way through the process, the results could be inaccurate.

Suppression of Blood Test Results in Virginia

A motion to suppress asks the Court to keep out of evidence certain materials, including blood tests, due to some unconstitutional error made by the prosecutor or police. When a court grants a suppression motion, the blocked evidence could result in a reduction or even dismissal of your charges.

Blood tests may be suppressed when:

  • the initial traffic stop was unconstitutional;
  • the taking of the blood sample was not performed by a proper individual under Virginia law;
  • the blood sample was contaminated;
  • the proper testing procedure was not performed on the blood sample; or
  • the sample was improperly stored, transported, or documented.

Suppression of the blood sample can also occur when there is a gap in the chain of custody. The chain of custody refers to the record of how and when the sample changed hands, i.e., when it was given from one party to another. If there is a gap where the court and the defendant cannot determine where the blood sample was at any given time, a suppression motion can often keep the sample out of evidence.

Many times, without this evidence, the prosecutor's case is too weak to proceed on a Virginia DUI charge.

Contact an Experienced Virginia DUI Defense Attorney

You have options to fight your charges. Just because you are charged with a crime does not mean you will be found guilty. To protect your constitutional rights, you need Virginia DUI attorney Bryan J. Jones to defend your case.

Contact us today to schedule an initial consultation to discuss your case.

CONTACT US TODAY

In criminal cases, time is a crucial factor. Retaining an attorney as soon as you are charged is important. Contact the law offices of Bryan J. Jones, LLC to defend your case and help develop a strategy tailored just for you.

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