Hospital blood draws involve an unconstitutional Virginia statute for DUI cases

Hospital blood (HB) draws are routinely performed on injured people, to determine how to assist the person. As a Fairfax criminal lawyer, I know that the Virginia DUI law includes a shortcut for prosecutors to attempt to introduce those blood draw analyses into evidence as business records without needing any witnesses. Clearly, such a statute flies in the face of the Constitution’s Sixth Amendment’s Confrontation Clause and the Fifth and Fourteenth Amendment’s guarantees of due process of law. However, the risk exists that at least in a Virginia District Court that the judge will defer to the Circuit Court rulings on the facial or as-applied Constitutionality of a statute, where a Circuit Court review only happens if a conviction takes place in District Court.

What does the statutory law say about the trial admissibility of hospital blood testing results at a Virginia DUI trial?

The HB statute for Virginia DUI cases says: ” Notwithstanding any other provision of law, the written reports or records of blood alcohol tests conducted upon persons receiving medical treatment in a hospital or emergency room are admissible in evidence as a business records exception to the hearsay rule in prosecutions for any violation of § 18.2-266 (driving while intoxicated) or a substantially similar local ordinance, § 18.2-36.1 (involuntary manslaughter resulting from driving while intoxicated), § 18.2-36.2 (involuntary manslaughter resulting from boating while intoxicated), § 18.2-51.4 (maiming resulting from driving while intoxicated), § 18.2-51.5 (maiming resulting from boating while intoxicated), § 29.1-738 (boating while intoxicated), or § 46.2-341.24 (driving a commercial vehicle while intoxicated).” Virginia Code § 19.2-187.02. 

How can my Virginia criminal lawyer attack the admissibility and reliability of my HB analysis at trial?

Your Virginia criminal lawyer’s available attacks against the admissibility and reliability of your HB analysis (versus blood drawn pursuant to the Virginia Code) at trial (in the absence of testimony from the person who drew your blood and analyzed your blood) include: The Constitution’s Sixth Amendment bars testimonial evidence (which is what blood analyses are) without live testimony from the analyst. The Virginia’s business records statute has exacting standards for permitting the presentation at trial of purported business records without live testimony, and permits the opponent to file a timely objection to said records. Virginia Code § 19.2-187.02 talks of alcohol tests being admissible but does not mandate their admissibility nor mandate reliance on them; commonly, I do not see hospital records list the name nor credentials of the blood drawer nor blood analyst, which enables your Virginia criminal lawyer to attack giving much if any weight to such blood analyses. If the Virginia Code makes HB records admissible as business records, then that enables attacking them the same as with all business records, which is to attack whether all levels of hearsay and other required evidentiary hurdles have been met to enable considering the records’ assertions (keeping in mind that the HB admissibility statute does address their admissibility under the business records exception to the hearsay rule). HB analyses are geared less towards thorough and precise blood analysis, than to determine the course of treatment with the patient, and have points of attack for their reliability and possibly inflated blood alcohol concentration (BAC) numbers .

What should I do if charged with a Virginia DUI violation and my blood has been drawn at the hospital or at police request / direction / or search warrant?

If you are a Virginia DUI (driving under the influence of or while impaired by alcohol, drugs and/or intoxicants) (also known as DWI) defendant and your blood was drawn at the hospital or pursuant to police direction or search warrant, ask your potential Virginia criminal lawyer their game plan for attacking the blood evidence head on. Not only do my attacks include those listed above when HB is involved, but for police-directed or search warrant-drawn blood, I have a comprehensively thorough approach and attack that I tailor make for each such case, having defended against over one hundred Virginia DUI blood draw cases.

Top-ranked Fairfax criminal lawyer Jonathan Katz is thorough, timely, completely responsive and relentless in pursuing your best defense against Virginia felony, misdemeanor and DUI prosecutions. Secure your free strictly confidential initial in-person consultation about your court-pending prosecution, by contacting us at 703-383-1100, jon@BeatTheProsecution.com, and (text) 571-406-2768 .