An interesting thing about blood draws is that most police agencies have policies on blood draws. They indicate that a phlebotomist, a nurse, or a police officer who has training should not attempt to stick someone with a needle more than twice. If the person attempting a draw of the blood has stuck a person twice and has not been successful, then they are supposed to bring in some other phlebotomist or trained officer or nurse to attempt to draw the blood so that basically the person is not tortured by consistently being stuck with a needle.
The problem is that there are some officers that literally ignore this policy but because it is simply a policy and not the law, there really is no remedy. It doesn’t mean that the blood is going to be suppressed; it doesn’t mean that the case is going to be dismissed. It’s possible to file a civil lawsuit against a police officer but unless there is some severe damage done, I think a person would be hard pressed to find a civil attorney who would be willing to take it because the stakes are too low—there aren’t enough damages, there isn’t enough money to be made.
If a person refuses to take a blood draw, officers in Arizona are not just going to say, “Okay, well, we tried.” They are going to get a warrant and they will hold the person down, if necessary, they will beat them up a little bit if necessary to force the person to comply with the blood draw once the officers have obtained a warrant.
Many people come into my office with bruises because of the way that the blood was drawn. They think that officers have a ton of training or that officers are not allowed to draw the blood. The reality is that officers have only a couple of hours of training. Courts have not considered it to be a conflict of interest that the person who is arresting you, the person who is trying to gather evidence, who was involved in handcuffing you and having you do field sobriety tests, is also the person that is sticking you with a needle later on.
It seems that there is an adversarial relationship when an officer pulls you over and suspects you of DUI and all of a sudden, here they are with a needle trying to stick that in your arm, often resulting in bruising.
How Can a Blood Draw Case Actually be Beaten in Court?
To test blood they use what’s called headspace gas chromatography. They basically take the blood test from a suspect along with the blood test from upwards of 35 other suspects, and they test everyone’s blood in what’s called a batch. They will put a lot of different blood vials on a machine along with calibrators and blanks to make sure that when the blood is tested, they get a correct amount.
There can be problems with the blood testing itself. It is prone to issues where the crane, as it’s called, which goes and picks up certain vials from this batch of blood vials, can be dysfunctional. It can potentially grab the wrong vial, and we’ve seen machines that will mislabel certain blood vials, we’ve seen batches that every blood test result was attributed to one number, so vial no. 5 had a hundred blood test results and none of the other vials had any.
When an officer draws blood, there are two chemicals that are supposed to be present in the blood vial prior to the blood entering into it. One is a preservative, one is an anticoagulant. The officer will say that he observed that these chemicals are present in the blood vial prior to the blood draw but realistically, all the officer sees is a white chemical powder and doesn’t really know what chemical powder that is, and the lab doesn’t test for the presence of the preservatives or anticoagulants.
There is such a thing as yeast and one of the functions of yeast is that it will eat up sugar and then create alcohol by processing that sugar and we have sugar in our blood. So, the point of the preservative in the blood vial is to prevent any yeast from creating its own alcohol by eating up the sugar in our blood but since they don’t test for the preservative being present, it’s possible that our blood alcohol contents would go higher over time because it does take labs usually a couple of weeks to a couple of months to actually test the blood vials.
The point of drawing the blood and having a preservative in the vial is to ensure that the blood alcohol that person had at the time of the blood draw is the same blood alcohol content that the person would have when the test is performed, though without ensuring that there truly is a preservative in the blood. They don’t really know whether it is truly representation of the correct blood alcohol content or whether yeast could have possibly started eating at the person’s blood sugars and created additional alcohol in their system.
Do Blood Draw Cases Take Longer than Other DUI Cases?
They can. They have to bring in a scientist to indicate how the blood was tested using correct scientific methods and that it was accurately determined to be a correct blood alcohol content. Usually, it’s the scientist that tends to take the longest on the stand. The scientist will be there anywhere from an hour to a couple of days.
What makes DUI jury trials take so long is the scientist testifying and trying to show the jury that all the proper steps were taken and that the results were scientifically reliable, whereas the defense attorney wants to attempt a challenge that the results are correct or they are scientifically reliable.
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