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Blood test challenges in Virginia DUI prosecutions – Law and science

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Blood test challenges

Blood test challenges are essential against Virginia DUI prosecutions

Blood test challenges by the defense need to be thorough in Virginia blood draw DUI prosecutions under Va. Code § 18.2-266. As a Fairfax DUI lawyer, I have defended scores of people prosecuted for such alleged offenses, cases, and in numerous instances worked with forensic toxicology experts. Knowing and applying the applicable law and science is critical in fighting blood draw prosecutions alleging driving under the influence of alcohol and/or drugs.

Challenge the legality of the blood test

Blood can only be withdrawn from a Virginia DUI suspect under police direction if with the driver’s consent, with a search warrant issued in conformity with the Constitution’s Fourth Amendment, or under exigent circumstances (which circumstances ordinarily are absent when a judicial search warrant-issuing authority is available; they are always available in Northern Virginia). Birchfield v. North Dakota, 136 S.Ct. 2160 (2016). Blood test challenges require the Virginia DUI defense lawyer to determine the basis on which police obtained a blood draw from the defendant.

Obtain a test of the blood from an independent laboratory

Early on in the blood test challenge in a Virginia DUI case involving alleged driving after alcohol and/or drug consumption, the defense lawyer should meet the 90-day statutory deadline under Va. Code § 18.2-268.7 to obtain a court order for the Virginia Department of Forensic Science (DFS) — which tests the blood for the prosecution — to transmit the blood test results to a defense-designated private lab to test for the alcohol and/or drug types that the DFS certificate of analysis claims is in the blood. Here is the court-approved blood transfer order form. I have usually used NMS Labs in Pennsylvania. When NMS Labs’ testing results report listed a numerical drink consumption estimate (NMS years ago stopped doing so), I more often used Rocky Mountain Instrumental Laboratories, with whom it is important to ask to test the blood from only one vial, in order to reduce their fee significantly. I have tried FIRM Lab at the Virginia Commonwealth University, but have found found NMS Labs to be more responsive than FIRM when I have questions, and FIRM’s location in the same city at DFS’s headquarters does not seem to add any benefit, including when considering that Northern Virginia DUI blood draws typically get sent to the DFS’s Northern Virginia lab.

Attacking the blood search warrant

Even if the defendant says s/he consented to a blood draw, his or her Virginia DUI lawyer should check with the Circuit Court where the case is being prosecuted, for whether a search warrant for the blood was obtained and filed by a police officer in the case. In some instances, the police officer will obtain a search warrant for a blood draw but not file it, either because the police officer views the defendant as having ultimately consented to a blood draw before it took place, or because the police officer overlooked filing the search warrant. When a blood search warrant is executed, the police will ordinarily hand the DWI defendant a copy of the search warrant, but not always with the police affidavit stating the grounds to issue the warrant. that affidavit may be obtained from the Circuit Court clerk’s office after the police officer returns the search warrant. The defense should challenge the legality of the blood draw.

Requesting and objecting to the DFS certificate of analysis

Filing a request for certificate of analysis pursuant to Virginia Code § 19.2-187 helps the Virginia DUI defense lawyer receive the defendant’s blood test results from the DFS soon after the DFS submits those results to the court where the case is being prosecuted. Timely filing an objection to the certificate of analysis under Virginia Code § 19.2-187.1averts the prosecutor’s ability to avoid a fight at trial over its admissibility even without the otherwise necessary prosecutorial witnesses.

Obtaining the DFS chemist’s notes

Once the defense receives the DFS breath or blood test result, it is time to issue a records subpoena / subpoena duces tecum for the chemist’s notes and report. Carefully review the subpoenaed documents, including to check whether the chemist listed on the certificate of analysis actually examined the blood drawn from the Virginia DUI defendant.

Challenging hospital blood draws not conducted by police request

If the DUI defendant goes to the hospital — after driving — for medical evaluation and/or treatment, rather than at the police request for a blood draw, the hospital and/or treating medical personnel may arrange a blood draw to check for blood and drug alcohol content for purposes of treatment only. The police or prosecutor may try to obtain a copy of those results,  and the defense may object. Here is my article on challenging blood alcohol and drug analyses conducted by the hospital and DFS.

Option to present the testimony of a defense forensic toxicology expert witness

The defense has the option to hire a forensic toxicologist to testify at trial, including to challenge the methods used to test the blood. I have worked with such experts in dozens of blood draw DUI cases, and in scores of Virginia DWI defense cases in general. Choose such witnesses wisely, and have them fully informed about the relevant evidence in the case.

Fairfax DUI lawyer Jonathan Katz has successfully defended hundreds of people charged with DUI offenses. Learn the critically positive difference that Jon Katz can make to your defense, through a free in-person consultation scheduled through his staff at 703-383-1100