What Strategies Do You Employ To Refute Blood Tests In A DWI Case?
One thing about blood tests as compared to breath tests is that there is an awful lot of information that you need to get from the laboratory. Laboratories are frequently not used to providing the kinds of documentation that need to be requested, but that is because most attorneys don’t know to request them. Just as you would with a breath sample, you have to make sure that the people administering the test are qualified to do so. You have to make sure they are following a proper procedure. You have to make sure the equipment is working properly. You have to make sure there are standards in place at the laboratory to assure that readings will be done and then tests would be done properly. Finally, you have to make sure that the laboratory itself is accredited to do the kind of blood testing that’s being done.
The first thing we do through the pre-trial process known as discovery, we ask the state to provide all of that documentation. It’s an administrative headache a lot of times for the laboratory directors and if the documentation isn’t provided, sometimes we can get the blood test excluded on that basis. Assuming the state has provided all of this in discovery, then it’s a question again of looking into the uncertainties of the measurements and seeing if it’s significant enough to maybe induce the state to modify their position if there is a plea. Most of the times though, we are going to end up going to trial, and there are two ways to deal with the trial. One, even though blood testing is more accurate than breath testing, it’s a lot more difficult for the state to prove a blood alcohol content because logistically they have to bring in more people.
They need to bring in the person who drew the blood, they need to bring in some people to explain the chain of custody and they need to bring the chemist in to talk about the analysis they have done. Getting that many people to come in and testify can sometimes be so difficult that the state will not be able to prove their case, so you play the logistics. The other way is if you do get complete discovery, you can have it reviewed by an expert. I frequently use a laboratory auditor who will make sure that everything is correct. Very often, errors are found. We’ve seen this even in New Jersey where there were some scandals involving laboratory personnel who fudged or outright lied about aspects of the process involving drug testing. I haven’t seen it yet with blood testing, but unless you check you don’t find it. So what we are doing by getting discovery and consulting with an expert is making sure the state has crossed their T’s and dotted their I’s.
They have the ultimate burden of proving a defendant’s guilt beyond a reasonable doubt, and it’s the defense attorney’s job to make sure they live up to that burden. If they don’t, the defendant should be found not guilty.
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