Virginia blood DWI defense – Fairfax DUI lawyer addresses your possibilities and challenges

Virginia blood DWI defense ideally calls for your lawyer to know the science, strategy and applicable law. As a Fairfax DUI lawyer, I know that such defense is more nuanced and layered than when blood alcohol content (BAC) is tested through breathalyzer / Intox EC/IR II testing. When you meet with a potential DWI lawyer to defend you, consider asking that lawyer’s experience defending against blood DUI cases (alleging violation of Virginia Code § 18.2-266, working with defense forensic science experts, cross examining scientists from the Virginia Department of Forensic Science (DFS), and getting a sample of your blood timely transferred to a private lab for independent testing. A full court press is needed for this defense.

What is one of the first things my lawyer should do for my blood DWI defense?

One of the first things your attorney should do for your Virginia blood DWI defense is to assure that a sample of your blood drawn at the police officer’s request or direction, be transferred to a private laboratory for independent testing. As a Fairfax DUI lawyer, I file for a blood transfer order for the sample to arrive at the private lab, filing this order request well before the termination of the ninety-day statutory deadline for doing so. I typically arrange for such testing to be done by NMS Labs, 200 Welsh Rd, Horsham, PA 19044, NMS repeatedly reports a lower BAC than the DFS for my clients’ cases. This can be a critical difference when the DFS claims a BAC above a mandatory minimum jail BAC threshold (or even a 0l08 threshold) when the NMS result is below that threshold, with or without subtracting the plus / minus margin of uncertainty that shows on the respective certificates of analysis from the DFS and the private lab. When the defendant is willing to concede to the accuracy of the private laboratory’s certificate of analysis, the defense lawyer may file that private certificate of analysis following the statutory requirements for doing so timely and correctly, for presenting the same at trial. Alternatively, the private lab’s certificate of analysis may be used for negotiating with the assistant commonwealth’s attorney / prosecutor for a mutually agreed resolution / plea to the DWI case, can be used at any sentencing, and can be used by any expert forensic scientist who testifies at trial. If you have a private forensic scientist testifying for you, it is important for your lawyer to find out what, if any, charts, notes and graphs that your private forensic scientist wants from your private blood testing lab. Also, your lawyer can issue a records subpoena (which I always do) for all the DFS scientist’s charts, graphs and notes for this incident related to your case.

Do I have a choice between breath and blood BAC testing for a Virginia DUI investigation of me?

You do not get to choose whether your BAC testing for a Virginia DUI investigation will use breath or blood testing. Many of my clients tell me that they refused breath testing, out of viewing breath testing for BAC too inaccurate, but a refusal is still a refusal with its attendant penalties under Virginia law, which include one year of no driving (with restricted driving privileges available)  for a first offense for such refusal (a civil penalty), and three years of no driving and up to a year in jail for a subsequent refusal prosecution. It is important for you to consider such an area of the law for your Virginia blood DWI defense.

Do I have the right to resist blood BAC testing if the police have obtained a search warrant to draw my blood?

Physically resisting the execution of a blood search warrant on you can add a misdemeanor obstruction of justice charge against you, and does not help your Virginia blood DWI defense. Declining to consent to a blood draw of you before a search warrant is issued, ordinarily forces the police officer’s hand either to no longer seek BAC testing, or else to draft a search warrant application, whose contents can be used by your lawyer to argue the lack of probable cause to be found therein for a judicial officer lawfully to approve a blood draw search warrant application.

Must the blood draw witness be present at my Virginia blood BAC DUI case?

At least two Northern Virginia prosecutor’s office make a repeated practice of endeavoring to offer blood test results in blood BAC DUI cases, without the presence of the blood draw witness. My view for Virginia DWI defense is that the blood analysis should not be permitted into evidence merely with the arresting police officer’s say-so that the blood draw person followed the procedure that the police officer is accustomed to (plus the prosecutor’s offering into evidence documentation of the blood draw witness’s status as a registered nurse, licensed practical nurse, phlebotomist or court-approved blood drawer). Suffice it to say, that the statute’s (Virginia Code § 18.2-268.5) very requirement that the blood draw person fits the foregoing bill means that the blood drawer has to do the blood draw right, which means they have to be available for and subject to cross examination, for starters.

Fairfax DUI lawyer Jonathan Katz pursues your best defense against Virginia DWI, felony and misdemeanor criminal prosecutions. For your free in-person confidential consultation with Jon Katz about your court-pending case, call 703-383-1100.