Interviewer: You had mentioned in a previous conversation that the blood test that some people are asked to give could be retested. If the client can have that same blood retested, is there a point in doing that? And does it show differently than what the police test shows?
Is Having Your Blood Test Retested a Good Choice?
Brian: Sure. Sometimes an officer involved in a DUI case receives training to be a phlebotomist, which is a person that draws blood. Sometimes they will take a person to a hospital to have a nurse take their blood. A person has a constitutional right to retest a sample of that blood and has a constitutional right to prove their innocence.
This is not about just sitting back and waiting to see if the prosecutor can prove their case beyond a reasonable doubt. A person has the constitutional right to prove their innocence. That includes retesting the blood that’s been taken by the officer phlebotomist or taken from the nurse. As an attorney, very rarely will I actually retest that blood. I have the means to do it; on occasion I will do it. I actually include that for free as part of my representation, but very rarely will I recommend doing that. The reason is, in reality, retesting the blood tends to come out with similar results to what the prosecutor tests results show.
Interviewer: Is having your blood retested essentially a waste of time?
Reasons From Attorney Sloan to Not Have Your Blood Sample Retested
Brian: Well, not that it’s a waste of time, but the problem with that is I have a much stronger argument in front of a jury saying that the prosecutor’s test results are wrong, that their science is wrong, that their science doesn’t match the facts of the case if I haven’t retested the blood.
What I can also hang my hat on is another reason why not to retest the blood, and I don’t think there are any other attorneys out there arguing this, but when the phlebotomist officer draws someone’s blood, they will then put that blood in a refrigerator. It sits in this refrigerator for three or four days before the scientists come to get the blood and test the blood. Sometimes it can be longer; sometimes it can be shorter. The fact of the matter is, supposedly it’s put in this refrigerator, the refrigerator’s not locked, no one’s really watching it, no one’s really logging in what’s going on with this blood sample.
Your Original Blood Sample Is Not Stored in a Secure Location
What you tend to see is that the officer drew the blood on Monday, and on Friday the scientist is testing it, but there’s really no accounting for what happened to the blood from Monday to Friday. So my reasoning in front of the jury is usually, why would I want to retest this blood? I have no idea where it’s been? No one’s been watching it.
It’s not behind a locked door. I don’t want to retest something that has been out of my sight or out of my client’s sight. What I would do during trial is ask the officer that has drawn my client’s blood, if my client had asked for his tube of blood right then, would you have given him his tube of blood? Would you have given him an extra tube of blood? And the officer will say no, that’s not part of their procedure.
So if my client is not able to get the blood right when it’s drawn from his body, I have no faith in knowing what happened to that blood sample, what happened to that extra tube that is drawn to allow defense counsel to retest the blood sample. If I don’t know what’s happened to it and I can’t account for all the days that have passed, I don’t have any faith in what my retesting would come up with.