Virginia DUI blood defense calls for knowing the science, law and strategy

Virginia DUI blood prosecutions arise in DWI cases where the defendant’s blood is drawn to test for the alcohol and drug level in the blood. As a Fairfax DWI lawyer, I have blogged about various aspects of such defense, and this article provides you the convenience of having those key defensive approaches addressed in one article rather than in several places.

Do I get to choose between breath and blood testing in my Virginia DUI case?

Virginia DUI blood defendants do not have a choice between breath and blood testing. Once a law enforcement officer makes a DUI arrest for probable cause, the arresting officer gets to choose whether to ask the defendant to submit to breath or blood testing. Based on Fourth Amendment Supreme Court caselaw, refusal to consent to a blood teste cannot be criminalized (versus imposing such non-criminal sanctions as a civil penalty with a loss of license), but obstruction of justice can be charged if the DUI arrestee physically resists submitting to a lawfully issued blood search warrant.

What leads a police officer to demand a blood test rather than breath test

At first blush, breath testing takes less money and humanpower than blood testing in DUI cases. In Virginia, the arresting police officer is permitted also to administer breath alcohol testing, if certified to do so. Virginia DUI blood prosecutions, on the other hand, ordinarily require three prosecution witnesses before the blood drawn from the defendant may be introduced into evidence at trial, namely at least the arresting officer, the person conducting the blood draw (check whether the blood technician is approved by statute to draw blood for Virginia DUI prosecutions), and the Virginia Department of Forensic Science scientist who concluded the breath or drug level in the certificate of analysis for the case.

When should I hire a lawyer against a Virginia DUI prosecution?

The sooner one hires a lawyer against a Virginia DUI blood or breath prosecution, the better. The prosecutor and police are not waiting around for the defendant to obtain a lawyer, who can help reverse the uneven playing field that exists before a criminal defendant obtains a qualified lawyer.

What is the first thing the defense should do in a Virginia DUI blood case?

As with all criminal defense cases, a DUI defense lawyer needs timely to enter his or her appearance with the court (which means filing an executed substitution order if replacing a prior defense lawyer) and begin to obtain essential information and evidence in the case. Crucial is to meet the court’s 90-day deadline after the blood draw date to seek a judge’s signature on an order for a sample of the defendant’s blood draw to be delivered to a private lab of the defense’s choosing, for independent testing.

What substance(s) should the Virginia DUI blood defendant ask a private laboratory to test for?

Before I tell my selected private laboratory to check for alcohol and/or designated drugs, I first want to see the DFS-generated certificate of analysis (COA), and then want the private lab to test for every substance showing a positive testing result in the COA. For helping my Virginia DUI blood client to manage his or her finances, I find out the lab’s pricing for testing only one or both blood draw vials, and the price a la carte and total pricing for each substance to be tested.

How long will it take for the blood sample to arrive at the defense-designated private lab? I have seen blood samples in Virginia DUI blood cases sent to the private lab only after the DFS has examined the blood and produced a certificate of analysis listing the alcohol and/or drug level in the blood. Whether that is a matter of written guidelines or simply practice, that approach would appear to be to have all the drawn blood ready for testing in case any of the drawn blood were to get lost, destroyed or contaminated.

Pursuing a records subpoena for the DFS scientist’s notes and records

The trial date is not the time for the Virginia DUI blood defense lawyer to be seeing, reviewing and analyzing the DFS chemist’s notes and other records. That should be sought through the preparation, filing and service of a records subpoena (also known as a subpoena duces tecum). Armed with the subpoenaed documents, the defendant and defense lawyer can determine whether to engage a scientific expert’s assistance to review and advise on the forensic evidence in the case.

Whether to engage a scientific expert’s services, and whom to choose

A forensic toxicology expert should be considered to be hired when a Virginia DUI blood or breath test result is at the critical threshold of 0.08 for the statutory per se guilty threshold, as well as the mandatory minimum thresholds of 0.15 and 0.21. I have worked with a forensic toxicology expert scores of times often with favorable results.

Is a blood draw a search for Virginia DUI blood prosecutions?

As confirmed by the United States Supreme Court, a blood draw is a search, which means that the blood draw is inadmissible without consent of the accused, a valid search warrant, or exigent circumstances. The Virginia Court of Appeals has said that because Virginia law says that a person driving on the public roads of the commonwealth impliedly consents to a breath or blood test if arrested for DUI, then that consent is inferred for a blood draw unless the defendant states his or her refusal.

Fairfax DUI lawyer Jonathan Katz has successfully defendant hundreds of DWI defendants and has taken over one hundred such cases to trial, often using expert witnesses. Learn the positive difference that Jon Katz can make to your defense by calling 703-383-1100 for a free confidential in-person consultation with Jon.