Hospital Blood Draw

[andy84]

My question involves criminal law for the state of: South Dakota
I was in an accident and taken to the hospital. The HP was there and I told him I couldn't blow in the breathalyzer and then the Dr. came in and took my to x-ray and told the HP that they would have to wait on the blood draw. The deputy also showed up and said he talked to the States Attorney and he said they didn't need to wait. He would just get the BAC from the hospital. What is the chances of him being able to use those records in court. An alcohol swab and Iodine were both used on the draw site prior to taking the sample and it was tested at the hospital using serum blood.

[PandorasBox]

They can be used.

Sorry, but the little bit of alcohol to swab your arm isn't going to set off anything with the counts.

So if you were drinking at all, your first step is to find a good lawyer.

[cdwjava]

Your attorney can certainly try to challenge the test results at the hospital. If you have the money, I am sure he can bring in witnesses who will testify that the swab contained alcohol and likely affected the test results.

The hospitals here do not tend to use alcohol swabs, so you might be surprised and find out that the swabs used were iodine or some other non-alcohol solution.

Consult legal counsel.

[chuckycheese]

Some breathalyzers won't differentiate between ethyl and isopropyl alcohol (rubbing alcohol) but I'm pretty sure (not certain) that all blood draws would.

For anyone who's interested, there was an article in the "Journal of Emergency Medicine" in 2007 that addressed this very issue.

[cdwjava]

There are a number of articles on that which is one reason why most hospitals (at least the ones I know of) have gone away from alcohol swabs and replaced them with iodine or other disinfectant swabs. When we have an evidenciary blood draw taken, we book the package the swab came in as evidence along with the blood vial and affidavit, and this is SOP in most of the state these days (or so I am told).

I suspect that hospitals also do that for internal draws as well. After all, if it has an effect on OUR tests, it certainly could effect theirs.

[chuckycheese]

The point of the article that I referenced is that it doesn't have any effect....nor would you expect that it would (at least I wouldn't).

[cdwjava]

The point of the article that I referenced is that it doesn't have any effect....nor would you expect that it would (at least I wouldn't).

Unfortunately, there has been enough of a ruckus made that at least in CA they have gone to iodine to simply avoid the argument as the average juror does not generally understand the difference in alcohol, and there is some research that seems it might have an impact ... I don't have that study, but it was cited in the argument some years back to support the move away from alcohol swabs. But, it is likely a weak argument, because even before we moved away from alcohol swabs, I had never heard that argument made in court.

[andy84]

The ER Dr. told my girlfriend ,who in a RN at the hospital, that since they used an alcohol swab the test would be invalid. The BAC was much higher than I thought it should have been.

[cdwjava]

The ER Dr. told my girlfriend ,who in a RN at the hospital, that since they used an alcohol swab the test would be invalid. The BAC was much higher than I thought it should have been.

Your attorney is certainly free to argue the results of the test.

Keep in mind that what the doctor believes to be the case may not be so. Is the doctor named? Will he testify to that statement at trial?

You will find out. If the state contests your attorney's challenge of the BAC then you will know their intention.

[chuckycheese]

The ER Dr. told my girlfriend ,who in a RN at the hospital, that since they used an alcohol swab the test would be invalid. The BAC was much higher than I thought it should have been.

Total nonsense! When attorneys have medical problems, they hire medical doctors. When medical doctors have legal problems, they hire attorneys...think about it.