Blood tests performed by law enforcement are not always accurate and could result in a driver being wrongly convicted. Read on to find out how you may have your blood test excluded as evidence.
A driver can usually choose to take a breath test or a blood test. If there is an injury accident or if there is reasonable suspicion of drugs other than alcohol, a blood test can be required. If there have been prior DUI convictions, this too may trigger a blood test instead of the breathalyzer. A breath test is usually preferable to most people if given a choice. It is quick to administer, less invasive and doesn’t cost anything for the accused individual, and frankly, it provides less information to the police and prosecution. In the event of a conviction, the cost of a blood test will be added to any fine ordered. On the other hand, blood tests are more reliable and precise, and you have the right to some portion of the blood to have it individually tested for discrepancies. Any kind of private analysis by a defense team’s toxicologist is at the driver’s own expense.
If the driver is required to take a blood test and refuses, the police will contact a Justice of the Peace (day or night) to get a warrant for the blood test. Officers will then have the right to use reasonable force to obtain blood test from the driver. This might involve using restraints to achieve this. Your driver’s license will be suspended automatically for 1 year upon a refusal to consent to a blood test. What most people don’t know is that when they accepted their driver’s license, they implied consent to these evidentiary tests.
Blood tests are not administered at the place of the arrest. The arrested driver will be taken to a booking area or jail, occasionally a hospital. The blood is test is taken by someone licensed to do so; they are called phlebotomists. Nevada law sets forth certain requirements and training for DUI phlebotomists. If an unqualified person does the draw, that evidence will be inadmissible. They will draw enough blood for you to have some of it independently tested at your own expense if you so choose. Mr. Weiss can assist you in requesting an independent test if necessary, as law enforcement reports might be inaccurate or unreliable.
In addition, your attorney might be able to raise reasonable doubt that the administration of the blood test was done improperly and thus get your case dismissed or reduced. Some of the defenses include broken equipment, a blood test not taken within two hours of the arrest, potential contamination of the blood, use of an improper sterilizing swab, improper storing of the blood, a missing chain of custody of the sample, an unqualified phlebotomist, or failure to properly mix a stabilizing agent that stops the blood from continuing to ferment on its own. If you elect to have your blood drawn, your driver’s license won’t be suspended until the blood test results come back. This can take several months sometimes. Someone who has taken a breath test and failed will usually have their driver’s license suspended immediately. The driver’s license suspension can be contested at an administrative DMV hearing which is separate from the criminal hearing. The DMV hearing is not a criminal hearing, it is a civil hearing only concerning ones driver’s license. Thus, the standard of proof is significantly lower than in criminal court. You do have a right to the DMV hearing and you do keep your driver’s license while the case is pending.
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