Virginia DWI blood trials- Fairfax criminal lawyer addresses absence of drawing witnesses at trial

Virginia DWI blood (VDB) draw trials require the live testimony of the blood analyst before the testing results can be admitted into evidence, unless the defense fails to file with the court a correct, timely objection to a timely filed notice of intention filed by the prosecution to introduce the certificate of analysis without witness testimony. As a Fairfax criminal lawyer, up until the departure of one of the main jail VDB draw technicians, I was seeing the assistant commonwealth attorneys (ACAs / prosecutors) in my county rely on the presence of the VDB draw technicians at trial. After that departure, the Fairfax prosecutors started relying on a Circuit Court order permitting said departed VDB technician to conduct such draws, although the last name on that order precedes her name change by marriage. Now, the Virginia Court of Appeals says that the absence of the VDB draw witness at trial does not violate the federal Constitution’s Sixth Amendment Confrontation Clause. Caldwell v. Commonwealth of Virginia, ___ Va. App. ___ (2025). However, Caldwell does not prevent a full frontal attack on the trial absence of the VDB draw technician for reasons other than the Sixth Amendment.

Virginia DWI blood draw defense requires a full frontal assault, says Fairfax criminal lawyer

Caldwell was stopped for a moving violation, and the police officer/law enforcement officer (LEO) arranged for a Virginia DWI blood draw at the hospital. Kelly Patterson was the VDB draw nurse, who did not appear at trial. Over Caldwell’s Virginia criminal defense lawyer’s objection, the judge allowed the testifying blood analyst to testify about his testing results, despite the absence of the VDB draw witness at trial where, as here, the trial judge “admitted into evidence a Montgomery County Circuit Court order listing the names of technicians or nurses that were designated to withdraw blood samples pursuant to Code § 18.2-268.5. Kelly Patteson’s name was included in the order.” Caldwell. “Rejecting this argument, we find no Confrontation Clause violation because the statements made on the blood withdrawal certificate were not testimonial in nature. Here, unlike in Melendez-Diaz, Patteson was not the analyst who conducted testing on the appellant’s blood to determine whether it contained certain substances. Rather, she only collected the sample that was later analyzed, first by drawing the blood, and then by placing and sealing it in a specified container before giving it to Kirker, who then sent it to DFS for analysis. Patteson played no part in any scientific analysis of the blood sample, the result of which was the evidence used to convict appellant of driving under the influence of drugs.” Caldwell.

With Caldwell, how do I attack the absence at trial of my VDB draw witness?

Never let your Virginia criminal lawyer throw in the towel merely because one of their arguments gets rejected. This is like following an ever-developing flow chart, where a judicial rejection of one argument still leaves intact the ability to present other arguments. Here, the possible alternative defenses included challenging the LEO testimony that the Virginia DWI blood drawer was Kelly Patteson, rather than challenging how he knew that. Next, the LEO’s claim that nurse Patteson used a DFS-issued VDB draw kit could have been objected to for both its conclusory statement and also for lack of a showing that the kit used matched what was then authorized by the Virginia Department of Forensic Science. Next is the argument that the Virginia statute designating the people authorized to conduct VDB draws (including registered nurses and phlebotomists) means that they have to follow correct scientific procedures, and that their absence from trial means failure to establish such correctly followed procedures. Virginia Code § 18.2-268.5. Furthermore, Va. Code § 18.2-268.5 limits the types of material permitted for sterilizing the point of extraction and the type of needle used. On top of that, if the technician uses rubbing alcohol for such sterilization, that risks having the blood alcohol content of that rubbing alcohol contaminate the blood alcohol concentration (BAC) in the sample drawn from the defendant.

What should I do if charged with a DUI offense?

If charged with a DUI offense — whether or not involving a VDB draw — you want to obtain the best possible Virginia criminal attorney for your defense. Fairfax criminal lawyer Jonathan Katz has successfully defended over one hundreds of VDB draw defendants and hundreds more Virginia DWI defendants, including taking hundreds of DUI cases to trial. Jon Katz is among the small percentage of Virginia lawyers who are members of the essential National College of DUI Defense (NCDD) or its equivalent. For your free in-person initial confidential consultation with Jon Katz about your court-pending prosecution, call 703-383-1100, Info@Katzjustice.com and (text) 571-406-7268.