Jan 10, 2017 Virginia DWI defense- Challenging credentials of the person drawing blood
Those opposed to a robust criminal defense can protest all they want about defendant’s getting off on technicalities. I reply that the Bill of Rights is not a technicality, nor are procedural rights that are enshrined in statutes.
Criminal defendants will be happy to win their case however they can, whether through a dismissal, keeping out evidence, or an acquittal.
In DWI cases involving drawing and analyzing blood for alcohol content, it is essential for the defense to be ready to challenge whether the blood draw person is among those enumerated by statute as authorized to withdraw the blood:
[O]nly a physician, registered nurse, licensed practical nurse, phlebotomist, graduate laboratory technician or a technician or nurse designated by order of a circuit court acting upon the recommendation of a licensed physician… shall withdraw blood for the purpose of determining its alcohol or drug or both alcohol and drug content.”
Va. Code § 18.2-268.5.
The foregoing statutory provision lists three types of nurses authorized to draw blood for DWI cases: registered nurse, licensed practical nurse, and nurse designated by order of a circuit court. On January 10, 2017, the Virginia Court of Appeals confirmed through statutory construction review that the term “registered nurse” in the statute is not modified nor limited to require a circuit court’s designating order. Coffman v. Virginia, ___ Va. App. ___ (Jan. 10, 2017). That statutory construction makes sense.
Nonetheless, Coffman is beneficial for supporting that blood analysis is not admissible in evidence in a DWI trial if the blood drawing person is not one listed as authorized to draw blood pursuant to Va. Code § 18.2-268.5.