How can you possibly win a DWI case

How can you possibly win a DWI case

Typically, a sample of blood is drawn and tested for alcohol content in two DWI situations: when requested by law enforcement officers in connection with a suspected drunk driving case, or at the request of hospital medical personnel in connection with diagnosis and treatment of a patient who has been brought in after an accident. In the former situation, the blood is sometimes referred to as "legal blood" and whole blood is typically collected; in the latter, it is sometimes called "medical blood" and is typically serum. The methods used to draw, prepare, track, and test legal blood often differ from those used for medical blood.

A strong argument exists that serum blood samples, due to the problems with accuracy, show lack of trustworthiness as forensic evidence of the actual blood alcohol reading of a patient. Firstly every individual has a different serum or whole-blood ratio that varies from 1.90 to 1.35. Furthermore, an arbitrary or average conversion ratio does not give an accurate result for a particular individual.

Second, when medical staffers draw "legal" blood, they follow procedures promulgated specifically for blood alcohol testing. Often, state regulations or statutes will specify a particular type of "kit" that has alcohol-free swabs in the package, as well as a series of labels, seals, and "packing" forms to assure that all necessary steps are taken to obtain a sample that can be admitted in evidence.

In order to challenge the admissibility of a "legal" blood sample into evidence, the attorney must question the medical personnel involved to determine whether blood was draw and tested in compliance with state regulations. The defense attorney should also determine whether the regulations that were designed to ensure accuracy and reliability were followed. These regulations often specify that the vials shall contain anticoagulant and a preservative and be "stopped" or capped (or sealed) to prevent loss of contents through evaporation. These tamper-proof seals also will reveal any tampering with or compromise of the vials. Also, some jurisdictions mandate that all vials be marked with certain essential tracking information. Regulations or statutes may even specify the method of cleansing the subject=s skin before blood is drawn (i.e., with soap or Betadine, not alcohol).

The attorney should ascertain the condition of the tube used, because an improperly capped or filled tube may result in an incorrect BAC value. If the hospital (or police) sends blood to an outside private lab or the state crime laboratory for testing, counsel should check to see if the blood was continuously refrigerated, because the red-stoppered vials used by hospitals typically lack preservatives, and the alcohol content in the sample might actually increase if left at room temperature for an extended period of time. Jurors are shocked to learn that normal blood (with no alcohol in it at all) that decomposes actually creates ethyl alcohol as a by-product of the decomposition.

Almost all blood collection vials have an expiration date. Manufacturers claim that this is only relevant to the warranty on the vacuum within the vial. Jurors may see the issue differently, if defense counsel analogizes to milk or bread sold after the expiration date.

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