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  1. #1
    Join Date
    Nov 2018
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    9

    Default Challenging a DUI Blood Test

    My question involves criminal law for the state of: Washington

    What are the chances of getting a blood test suppressed if:

    I have a copy of the blood draw video which clearly shows that the phlebotomist did not invert the blood samples as required. In fact, he shook them, which every phlebotomy instruction I've checked specifically says not to do.

    The toxicology lab manual says evidence will be considered up to 120 days. I have a copy of their report, which shows they held my blood samples for 126 days before starting the test.

    The test results ultimately showed 0.11

  2. #2
    Join Date
    Sep 2005
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    California
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    20,331

    Default Re: Challenging a Blood Test

    Have you run this by your attorney? Challenging the procedures and policies of labs and phlebotomists is not a do-it-yourself sort of project. And while I have no specific knowledge of the inverted tube or the 120 day rule, understand that unless those are hard and fast rules enshrined into law in some way, if this is a policy or practice issue, these instances may not be relevant. This is why it is important to run this past an attorney with DUI experience.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  3. #3
    Join Date
    Sep 2010
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    19,146

    Default Re: Challenging a Blood Test

    You're wrong about inverting the tube. It's only required for certain of the tubes to mix the additive in the tube with the blood (most notably for the purple tops to make sure tha antilyse agent keeps the cells from breaking up before the counts can be done. It is not required to do anything to mix the Red top that was almost certainly used for the BAC draw. Most of the "chemistry" stuff like BAC doesn't care about the additive. The additive in the red top is only there to make the blood clot to make the blood typing tests more effective.

    If they really left blood in a red top for four months before running the test, you may have something.

  4. #4
    Join Date
    Nov 2018
    Posts
    9

    Default Re: Challenging a Blood Test

    They used a grey top tube which has sodium flouride and potassium additives in it to prevent clotting and fermentation. I've got some certifications of the tubes and the additives in my discover packet. But those additives weren't mixed with my blood sample properly. That flaw was then compounded by the length of time it took for them to actually test it.

  5. #5
    Join Date
    Mar 2013
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    17,054

    Default Re: Challenging a Blood Test

    Quote Quoting FishEKat
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    The test results ultimately showed 0.11
    There is probably enough other evidence of impairment to get you convicted.

  6. #6
    Join Date
    Nov 2015
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    Default Re: Challenging a Blood Test

    The toxicology lab waited >120 days to perform testing on your blood? I struggle with that. I can get a blood screen in minutes and I don't buy that the police are going to wait longer.
    "Where do those stairs go?"
    "They go up!"

  7. #7
    Join Date
    Jun 2017
    Location
    California
    Posts
    413

    Default Re: Challenging a Blood Test

    Even if you presented an expert at trial to point all the potential errors in the procedure, that goes to the weight of the evidence, not it's admissibility and is not a basis for suppression. You're not challenging the legality of the blood draw, which would be suppression. You're challenging the accuracy of the results, which not suppression. There was alcohol in your system.

  8. #8
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    Default Re: Challenging a Blood Test

    Quote Quoting Mark47n
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    The toxicology lab waited >120 days to perform testing on your blood? I struggle with that. I can get a blood screen in minutes and I don't buy that the police are going to wait longer.
    To be fair, the police do not control the blood test. Beyond the drawing of the blood and entering it into evidence, the testing is done elsewhere and often in the order it is received and the priority of the case for which it has been provided. Throughout my career it has not been uncommon for DUI cases to be continued for months because blood results had not come back, yet. When the CA DOJ laid off some half of their criminalists about 11 or 12 years ago, blood tests slowed to a point where returns took between 3 and 6 months on a regular basis. Resources are often limited, and a misdemeanor criminal offense may not be a high priority.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  9. #9
    Join Date
    Nov 2015
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    Default Re: Challenging a Blood Test

    Quote Quoting cdwjava
    View Post
    To be fair, the police do not control the blood test. Beyond the drawing of the blood and entering it into evidence, the testing is done elsewhere and often in the order it is received and the priority of the case for which it has been provided. Throughout my career it has not been uncommon for DUI cases to be continued for months because blood results had not come back, yet. When the CA DOJ laid off some half of their criminalists about 11 or 12 years ago, blood tests slowed to a point where returns took between 3 and 6 months on a regular basis. Resources are often limited, and a misdemeanor criminal offense may not be a high priority.
    That's crazy. I got all of my bloodwork for my last physical in about 5 minutes but a simple test for BAC is something that should be able to be done as quickly wherever the blood is drawn.
    "Where do those stairs go?"
    "They go up!"

  10. #10
    Join Date
    Sep 2005
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    California
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    Default Re: Challenging a Blood Test

    Quote Quoting Mark47n
    View Post
    That's crazy. I got all of my bloodwork for my last physical in about 5 minutes but a simple test for BAC is something that should be able to be done as quickly wherever the blood is drawn.
    You had it done in an onsite lab while you were present. A crime lab might have a couple of people doing the work and a few hundred tubes to process. And the process a hospital uses for determining BAC is different than the one used for a criminal determination (serum/plasma versus whole blood). The medical determination is quicker and can result in a higher BAC, so it may not be the best solution for potential criminal offenders.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

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