Criminal

Blood Draw Issues in Driving While Intoxicated Arrests Part 1

When you talk about blood draw issues we talk about blood I mean, this has been the biggest change in the landscape of the law that I’ve ever seen! That has taken place really over the course of 4 or 5 years and most of us in all of our jurisdictions if we have a TWI case, we have a breath or a blood test attached to it and so this has been the biggest change and for the very first time from the time that I’ve been practicing. I kind of feel like the prosecution has gotten the upper hand on us but we’re gaining. And we’re not in the situation that’s impossible, is it more difficult?

Certainly! But it is impossible? No! So we talk about blood draw challenges; there are really three areas we’ve got the law! We’ve got pre analytical error and that’s basically anything from the vein all the way to the laboratory. And that’s what I’m going to talk about this morning. And then you’ve got also the analysis! Now certainly no body, very few people could explain the analysis within one hour. There’re other seminars that are dedicated towards that you can learn a lot more about that but I want to focus on Pre-Analytical Error! You’ve got to remember; DWI is still an opinion Crime.

It started with the opinion of the arresting officer. It carried on down to the jail house and then they take blood and then who comes in to give an opinion about what the blood alcohol content is. Again it’s an opinion, it’s an estimate. So it’s just an opinion, and the opinion is only as good is the things that he’s relying upon; he or she! So the blood estimate is only an opinion and there is no presumption that is absolutely reliable and in fact in our jury charges, juries are told you’re the exclusive judges of fact, you can do whatever you want with this evidence. You don’t automatically have to believe it you’re free to accept or reject or only give it partial weight. Juries don’t like that fact, that you actually you can actually take blood.

Most of them are appalled or astounded with the fact when they learn that people are getting blood taken against their will! I was with a friend last weekend a neighbor; of course he’s a good neighbor, because we like to get together a lot. But he just thought; how in the world could it be constitution they could take blood. It’s been constitution for a long time! So jurors inherently most of them don’t like it. Now will they rely upon it; of course! but if you give them the option and let them know you’ve got a set the sage early and Void Dire that you’re free to accept or reject any of the evidence so it’s not, we don’t automatically have a law that if a breath or the blood test comes back above the legal limit that you’re automatically guilty. We have a constitutional right to jury trial, not trial by machine. So if the number comes back all it is, is a number. If I told you that this right here was book full of Enron stock worth $28 a share.

Would you buy it? Of course not! It’s certainly a number; it’s not backed by anything. So what’s the point there? What’s the take away? The take away is this: if you have a video or somebody demonstrates that they look normal, or they look sober or they look fine and then you’ve got a blood test which comes back above the legal limits.

You still got a trial able case just like you did with the blood test. So it’s just certainly a number. You push play of somebody looks sober and then you have a number that says something differently you have what’s referred to as a “disconnect”! The “disconnect” between the manifestation that you would’ve expect to see at a certain blood alcohol concentration level and then the opposite of what you’re actually seeing.

Francisco Hernandez

Author Francisco Hernandez

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