How Can I Fight My Tampa DUI Blood Test?
DUI Blood Test Lawyer Tampa Florida
In many Tampa DUI cases, the law enforcement officer will request the driver submit to a blood test to determine blood alcohol content (BAC). Blood tests in Tampa, Hillsborough County, Florida can also determine whether drugs are present. The blood test, if done properly, is generally viewed as the most accurate way of measuring Blood Alcohol Content (BAC) or whether certain drugs are present. However, even in blood test DUI cases important defenses exist. If you have been arrested for DUI in Hillsborough County after submitting to a blood test, contact a Tampa DUI Attorney at the Sammis Law Firm to discuss your case.
Legal Blood vs. Medical Blood
Under Florida law, the blood test can result from blood drawn at the direction of a law enforcement officer ("legal blood") or blood drawn by medical personnel solely for the purposes of treating the injured driver ("medical blood"). In order to admit legal blood during a DUI trial, the prosecutor must show that the law enforcement officer complied with Florida's implied consent warnings.
In order to admit medical blood during a DUI trial, the prosecutor must generally prove that the medical blood was taken by a medical technician that was qualified to draw blood, the blood test results are relevant to some issue in the case, and the blood test results are scientifically reliable.
Difficulties for DUI Prosecutors in Tampa, Hillsborough County, FL
Although the results may be deemed more reliable, using those blood test results at trial is often more complicated, expensive, and time-consuming for the prosecutor in Tampa, Hillsborough County, Florida. The problems with using the test result at trial occurs because of the length of time it takes to get the blood test results and because expert testimony is necessary to present the results at trial. Even more importantly, the prosecutors are typically far less experienced in dealing with DUI blood test cases then other types of DUI cases that involve a breath test or a "refusal" to submit to testing.
Call a criminal defense attorney at the Sammis Law Firm who is experienced in fighting the blood test DUI case in the Tampa Bay area, including Hillsborough County, FL. Important legal challenges that can be raised in a DUI blood test case in Florida that can lead to a dismissal of the charges or the reduction of the charges to reckless driving to avoid a DUI conviction.
Issues in the Florida DUI blood test case can include:
- Problem showing the sample was properly taken by a doctor, nurse or other "qualified person" ("the phlebotomist");
- Mistakes with using a swab that contained alcohol to clean the site where the blood was drawn;
- Mistakes with taking the blood from an artery instead of a vein;
- Problems with the mixing of the blood sample with the proper levels of chemcials that preserve the sample and anti-coagulant;
- Failure to preserve two vials of blood so that retesting by the defense attorney's expert is possible;
- Problem with showing the time line and procedures used by every person who touched the sample (also known as "chain of custody");
- Problems with storage of the sample including whether the sample was refrigerated;
- Problems with various methods of testing the sample including gas chromatography, enzymatic and dichromate;
- Problems with the analyst that runs the lab tests;
- Problems with the re-calibration of the plasma blood test result to whole blood value (because without the proper recalibration new studies show the result may be overestimated by up to 59%);
- Problem with expert testimony required to show adherence to strict procedures to make sure the result is scientifically reliable; and
- Problems showing compliance with Florida's statute particular for forced or mandatory blood seizure in a case involving a crash causing death or serious bodily injury or death.
In the typical blood test case, the prosecutor for the State of Florida is required to call expert witnesses for the admission of the blood test results, and to explain those results to the jury. Your Tampa DUI Lawyer can also use expert testimony to show any of the various problems with the testing procedures or methods used.
Blood Withdraws under Florida's Implied Consent Laws
Florida Law allows for blood to withdraw without consent or by force under limited circumstances. Florida Statute Section 316.1933(1) allows blood to be drawn by force if the officer has "reasonably trustworthy information" that would cause a person of reasonable caution to believe that the driver was DUI at the time an accident causing serious bodily injury or death occurred (even if the driver was the only person injured).
Attacks on the forced blood draw can be focused on any of the following issues:
- Whether the officer has probable cause based on objective circumstances and facts;
- Whether the officer has probable cause that the person subject to testing was the driver of the vehicle at the time the accident occurred;
- Whether the officer had probable cause that the driver was impaired by alcohol or drugs;
- Whether the injury that resulted from the car accident was "serious" as opposed to only minor;
- Whether the officer has direct information or information from a fellow officer;
- Whether the officer erred by following "standard operating procedures" instead of his own determination based on facts gathered during the investigation.
These forced withdraw of blood cases are the most scrutinized under Florida law.
- Blood Withdrawn by Force: After an arrest for DUI involving serious bodily injury or death, Florida law allows the "authorized medical personnel" to take blood by using reasonable force if necessary when the driver refuses to consent. Find out more about blood taken by force in Florida DUI cases.
- Blood Draw from an Unconscious Driver: If the drive is unable to give consent because he is physically or mentally disabled at the time of the request or because he is unconscious, then Florida law may allow a blood withdraw even if the person is not advised of Florida's implied consent laws regarding a suspension of his driving privilege for a refusal to submit to the blood test.
If you have been charged with DUI involving a blood test, contact an experienced DUI lawyer as early in your case as possible to discuss ways to fight the charge. Call 813-250-0500 to speak with one of the driving under the influence attorneys at the Sammis Law Firm.