DUI Blood Test
In many 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 and reliable way of measuring Blood Alcohol Content (BAC) or determining whether certain drugs are present.
Click here to read more about our Recent Case Results in DUI Blood Test Cases.
Despite the fact that the blood test might be more accuarate and reliable than other forms of testing such as a breath test or urine test, serious problems can still exist with blood testing. The good news about the blood test is that your attorney can request a portion of the sample so that an independent test can be conducted. In many cases, the reading of the independent test is very different than the reading taken by the crime lab at the Florida Department of Law Enforcement.
Other important defenses exist in any case involving blood test readings. If you were charged with DUI, call us to discuss your best defense. Act quickly to preserve all avenues of attacking these serious criminal charges. Call 813-250-0500.
DUI Blood Tests - Important Factors
- Legal Blood vs. Medical Blood
- Difficulties for DUI Prosecutors in Hillsborough County
- Issues with the Florida DUI Blood Test
- Blood Withdraws under Florida's Implied Consent Laws
- Mandatory Request for Blood Tests
- Handling of the Blood Sample
- Fighting for the Suppression of Forced Blood Draw Test Results
- Contacting a Lawyer for DUI Blood Test Cases in FLorida
DUI prosecutions can involve two different types of blood test results. The term "legal blood" refers to the blood test done at the direction of a law enforcement officer. The term "medical blood" refers to blood taken by medical personnel solely for the purposes of treating the injured driver.
In order to admit legal blood during a DUI trial, the prosecutor must usually show that the law enforcement officer complied with Florida's implied consent warnings.
If blood is taken for medical purposes when the driver is an accident victim, a prosecutor with the State Attorney's Office in Florida may be able to subpoena the test results under certain limited circumstances. The law enforcement officer will often document the fact that the blood draw occurred and include the driver's chart number in his police report.
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.
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 back from the crime lab 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.
- 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.
Florida Law allows for a blood draw without consent or with reasonable force under extremely limited circumstances. Florida Statute Section 316.1933(1) allows blood to be drawn by using reasonable 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).
If a law enforcement officer has probable cause to believe that a motor vehicle driven by a person under the influence of alcohol or any chemical or controlled substance, has caused death or serious bodily injury to another person, the driver will, upon the officer's request, submit to a blood test for alcohol content or the presence of chemical substances, as set forth in Florida Statute Section 877.111 or any substance controlled under Florida Statute Chapter 893.
The law enforcement officer will typically obtain a blood test kit. Only a qualified paramedic or hospital personnel are typically permitted to draw the blood sample. The law enforcement officer will witness the blood being drawn. If the officer does not witness the blood being drawn it typically complicates the chain of evidence issues for the prosecutor at trial.
In most DUI cases in Florida that involve a blood test, the law enforcement officer will process the blood sample in the following manner:
- The officer should follow the manufacturer's instructions.
- The blood specimen container should be sealed with evidence tape.
- The Florida law enforcement officer should sign and date the chain of custody request form.
- The Florida law enforcement officer should place the specimen bottle and original copy of the chain of custody form in a sealed evidence bag which is marked with a biohazard label.
- The marked and sealed sample should be sent to the property evidence room where the officer is typically required to:
- Place the blood sample in an individual compartment of an approved refrigerator;
- Close and lock the compartment;
- Place the property receipt in the property evidence chute.
- The person drawing the blood should complete the Certificate of Blood Withdrawal form which the law enforcement officer should then attach to the administrative packet.
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. After the recent decision in Missouri v. McNeely, 569 U.S. ___ (2013), forced warrantless blood draws are not allowed absent exigent circumstances.
- 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. However, these decisions allowing a blood test under the circumstances are being reevaluated in light of a recent U.S. Supreme Court decision in Missouri v. McNeely, 569 U.S. ___ (2013).
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.
This article was last updated on Thursday, January 4, 2017.