Another option used to determine if your blood alcohol levels, or BAC, were too high at the time that you were stopped is the chemical blood test. This test may be performed after you are arrested at the police station or a medical facility. However, some units have secure vehicles that they can use at the scene to take a blood test immediately. Where, when and how your BAC is checked can have a direct bearing on whether you are convicted or acquitted of a DUI.
Blood Alcohol Tests
A blood test for BAC is certainly the most accurate option available today. Blood alcohol tests are usually considered to be accurate within 5% of the number given. Because they are so accurate, many individuals, including some DUI attorneys, assume that nothing can go wrong with them and that a positive reading assumes that you are guilty.
Blood tests are simple procedures that do not take long to accomplish and that only cause minor pain and bruising at the sight. If you are required to have a blood test, you will be seated and will have a tight band placed around your upper arm. They may ask you to clench your fist. After cleaning the area, they will poke your arm with a needle. After they fill up their test tube, they will release the tight band, remove the needle and place a bandage over the location.
A certain protocol must be followed to ensure that your blood is treated properly to ensure correct results. If the protocol is not followed, your DUI defense attorney can safely assume that an error may have occurred along the way and that the number returned is inaccurate.
Even though blood tests are so accurate, they may still deliver falsely high readings. Most of the problems occur because of human error during the collection process although some errors also occur during the testing and reporting steps. Consider the following issues that have been seen in many cases.
The person who draws the blood must be qualified and have plenty of experience to perform the test correctly. Unfortunately, most phlebotomists have very little training and only 40 hours of experience before performing independently.
Incorrect blood collection
Blood specimens must be collected using sterile technique and using the proper equipment. For example, using an alcohol pad to cleanse the skin can skew results.
Inaccurate or broken equipment
Equipment may no longer be sterile or may contain microorganisms or other specimens that will skew results.
Poor blood storage
Upon being collected, the blood must be properly chilled before being sent to the lab.
Before being chilled, the vial of blood must be shaken for 30 seconds to decrease blood separation.
At the lab, equipment error or poorly calibrated equipment can give false positives.
Although rare, the lab may incorrectly report the BAC number obtained.
Range of error by the lab
In order to maintain an accurate and scientific process, the lab doing the testing should report their margin of error associated with the testing method. Labs that are accredited typically must report this.
Each law enforcement station will have a chain-of-custody protocol that they must follow to ensure that the blood is correctly obtained, stored and transferred. If this chain is not followed correctly, your sample results could be inaccurate.
Certain health issues, such as diabetes and high ketone levels, can inaccurately increase your BAC.
Isopropyl alcohol, cough medicines and mouthwashes containing alcohol and even herbal supplements, such as kava or ginseng, can increase your BAC.
Blood Alcohol Tests
Because there are so many things that can go wrong during the blood alcohol test, most states have changed their blood-gathering kits to self-contained kits that eliminate most possibilities for error. These kits ensure that testers do not use alcohol swabs to clean the skin and that they have everything they need in a sterile environment. Most also include what will be needed to split the blood sample in two to provide you with a separate sample that you can send out to be independently tested.
Keep in mind that you may still refuse the blood test for BAC. However, most states have “implied consent” laws. These laws state that because you carry a state driver’s license, the state has the authority to test your BAC at any time. Some states even give law enforcement personnel the right to test your blood without your consent. These “implied consent” laws also allow law enforcement to obtain warrants for blood draws in a mobile setting to give them the power they need to insist on a blood test.
If you do successfully refuse the blood test, you may face severe consequences whether or not you are convicted of DUI. If you refused and are subsequently convicted of DUI, your sentencing will most likely be harsher than it would have been had you submitted to the blood test. You may even be sentenced to a longer jail time. Even if you are acquitted of DUI, most states will still take your driver’s license away from you for a year. Although the right of refusal is yours, consider the consequences carefully before making your decision.
Even though blood alcohol tests are generally seen as being conclusive evidence by most judges and juries, your attorney may be able to challenge them successfully by using some of the above points. Your attorney will simply need to prove that some integral point was not carried through on the testing or that your independently tested blood sample came back with a different number than did the sample that was tested by law enforcement. Because the BAC results are generally the best method prosecution has for convicting you, the results of your entire case can be entirely turned around if your numbers are shown to be inaccurate or inconclusive. Typically, you need a very good attorney who is willing to challenge prosecution wholeheartedly to make this defense.