What Is The Procedure Of A Blood Draw (Or Urine Request) In A DWI Case?
The question about whether an officer is going to take blood or breath usually arises in the context of a motor vehicle accident, or for some other obvious condition that makes breath testing the improper way to measure blood alcohol content. When that occurs, police are generally required to get a warrant from a judge. They can do this by telephone. There are standard forms that they can fill out to indicate why they have probable cause to believe that the blood will provide them with relevant evidence. Probable cause simply means that the officer demonstrates that he has enough information on which to justify continuing his investigation. This is not a question of whether the person is guilty or not guilty, only whether the officer has sufficient reason to engage in a practice that’s very invasive–the of drawing a blood sample. When looking for drugs, police will often request a urine sample instead of blood samples.
There are occasions where an officer will be excused from getting a warrant, such as when the subject consents to a blood draw. This happens too much in my opinion, only because I don’t know why somebody would consent to provide evidence that would get him or her convicted unless they are absolutely certain they’ve had nothing to drink and want to demonstrate their innocence. This is not about whether you are being “cooperative” or “nice”–this is business, and you should resist police attempts to cajole or threaten you. People have no obligation to demonstrate their innocence under our federal constitution. There should be no adverse inference that you had a guilty mind in refusing to give a blood or urine sample because you have an absolute constitutional right to maintain the integrity of your body. But consent is still the most common way that officers get around the requirement that only a warrant justifies the drawing of the blood or requesting urine.
A second exception to the warrant requirement is something called exigent circumstances. That may arise in the context of a complicated accident scene where people are very busy. Sometimes they don’t smell an odor of alcohol or get an admission to drinking until after the subject is at the hospital. Because alcohol in the blood generally dissipates quickly over time, the police can claim exigent circumstances and draw the blood without a warrant if probable cause develops later and there is not enough time to get a warrant. It’s ultimately got to be tested in a hearing before the judge, and the judge will decide whether, in fact, the officer’s impression was legitimate. If it’s deemed to be legitimate, the judge will excuse the failure to get a warrant. If it’s not legitimate, the judge will exclude the blood test result from evidence.
If a judge determines the constitutional legitimacy of the blood draw, we go through the actual process of drawing the blood, which must be done in a medically acceptable manner. Most often a doctor, nurse, or a laboratory technician completes the procedure, usually in the presence of a police officer who watches the blood draw. When the person drawing the blood meets the patient, they have to prepare the site where the blood will be taken from by using a non-alcohol soaked cotton or sponge and cleanse the area by cleaning it in an outward spiral. The idea is to push the contaminants and other things away from where the skin is going to be punctured. If they just rub it back and forth, they are just moving dirt and contaminants back and forth. That can introduce foreign material into the sample that can lead to the neo-formation of alcohol due to bacterial action.
The tube has to be of a certain kind, usually one with a grey cap that contains certain powders, such as an anti-coagulant and a preservative. When the blood is drawn, the nurse, technician, or doctor then has to invert the tube containing the blood 8 to 10 times to make sure that the anti-coagulant and preservative are mixed homogeneously throughout the sample. You don’t want to shake it vigorously because that will break the little red blood cells and other components in the blood and alter the composition of that sample for purpose of measuring the amount of alcohol. The sample then has to be properly packaged, labeled and stored as it makes its way from the person’s arm to a laboratory.
There, a chemist is going to take that sample and inject a very small portion into something called a gas chromatograph [“GC”]. With the GC, the sample is passed through a long tube that is filled with a special sand. As that sample is forced through that tube, its different components separate out. When it gets to the end, it’s vaporized and a detector will see how light is absorbed based on what is emitted from that tube. Chemists identify the substance by comparing it to different standards. What the standards do is similar to putting marks on a ruler. When the sample is put through the GC, what the sample looks like is compared to those marks on the ruler tells us not only what the substance is but how much is in the blood. Depending on how long parts of the sample are retained in the GC, chemists determine whether and how much alcohol is in the sample.
If they are looking for drugs, chemists observe the patterns and wavelengths of light detected–a spectrum–when the sample is later vaporized after going through the GC. This is called mass spectroscopy and the instrument is called a mass spectrometer [“MS”]. After going through the GC, the sample is vaporized and a detector is looking to see the color of the wavelengths created by the vaporization. Each substance the chemist is looking for has a spectrum and several spectra are used to identify those substances they are looking for in the sample. Chemists will identify a substance if the patterns observed from the sample’s spectrum matches a reference spectrum.
GC/MS is a very technical process that often requires a defendant to hire an expert to look for errors in the process. Blood testing is much more specific and much more direct than breath testing because we are directly measuring the alcohol in the blood as opposed to inferring what the blood alcohol is by measuring breath.
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