How Reliable Are Blood Test Results Taken In A DUI Case?
That always depends on the situation. Even the police forensic specialists will admit that there is a margin of error, so if your blood test is borderline then it is certainly worth looking at whether it could be within that margin.
We will often request half of the blood sample and have it tested by an independent toxicologist. What happens once in a while is that when they draw the blood there’s preservative in the bottom of that vial and then once the blood is drawn that has to be mixed and it stabilizes the blood sample. If they don’t do that properly, sometimes the blood itself can actually ferment and you can see rising blood alcohol levels between the time it was taken from the individual and the time it was tested.
If our independent toxicologist sees a blood alcohol level that’s even higher than what the police tested, that means that there might have been a mistake made. If there was a mistake made and the blood was not mixed properly with the preservative than the entire blood sample could be completely thrown out and that makes the case much more winnable. Now that there’s no objective blood test they would have to prove that you were intoxicated under a different theory of law and it’s much more subjective as opposed to objective. They would have to show that you were actually impaired and couldn’t drive safely, and that’s much harder to do. If we’re able to get the blood test thrown out then we’re usually about to get the charge reduced or dismissed.
The other thing we look for is that your blood alcohol level can continue to rise over time. There is a definite possibility that someone was below the legal limit at the time they were driving and then 3 hours later the blood alcohol level has actually risen. Under Nevada law, there’s a two-hour window in which they have to capture the blood or breath test in order to use it. If they exceed that 2-hour window then we can get it dismissed and thrown out as evidence and that helps the case tremendously. From the time the person is behind the wheel to the time that the evidentiary test gets taken, it must be within two hours or we can usually get that evidentiary test thrown out and that’s a tremendous advantage in the case.
Should I Ever Admit Taking Prescription Medication In Front Of A Law Enforcement Officer?
By the time people are in my office, they’ve done whatever they’re going to do already, but you need to remember that the police are trying to find a reason. They’re building a case and they’re trying to establish probable cause to arrest you. I probably wouldn’t admit to taking anything. It’s a really tough spot for people with anxiety but by telling the officer you’ve taken something that day you’ve almost given them carte blanche to draw blood, so I usually tell people to say very little.
Say as little as possible while still being cooperative with the police officer. No matter how friendly they are, they’re asking questions to build probable cause to arrest you and so I would probably just be cooperative without admitting anything.
What Are The Penalties Associated With A Drug-Related DUI Conviction In Nevada?
There are three very different tiers for a first, second, and third offense within a seven-year period of time.
The penalties for a first offense involve two days to six months in jail if convicted, up to a thousand dollar fine, a DUI school, and a mandatory victim impact panel. If you have a blood-alcohol level above 0.18, there can be an assessment done to determine if you have an alcohol problem. They can order different kinds of counseling to address those issues.
For a second DUI within that 7 year period, the minimum jail time bumps up to 10 days to six months and the driver’s license suspension will be longer on a second.
A third DUI is a very serious scenario. That’s a felony. That’s about 1 to 6 years in prison plus a fine of up to five thousand dollars, and a suspension of your driver’s license for even longer. It’s a bad idea to drive while intoxicated, but if you’ve got two in your history you have to be very careful. If you do have a third offense charge you’ve got to take a very aggressive approach to it because there can be some life-changing consequences if convicted.
On a third offense, you really can’t afford to go with a public defender where they’re just going to process you through. We all have the right to a lawyer if we’re accused of a crime, but that doesn’t mean you’re entitled to a good lawyer through the state. You’ve got to find somebody that you trust and that has some specialized knowledge – not just a registered general attorney but an attorney that really does a lot of DUI cases.
How Much Do You Rely On The Use Of Science In Defending Your Clients Against DUI Charges?
What we typically do is to get the blood sample split in two so that we can get our own expert involved. It very much depends on what kind of drug we’re talking about, but the forensic expert can be your best friend. We look at a lot of different things. When it comes to a criminal charge there’s a lot at stake, so you really want to leave no stone unturned. A lot of times we will hire an outside expert who is a scientist working on our behalf to determine whether or not all the procedures were handled properly. There’s a lot of evidence that can be used. If the results from our expert conflict with the state’s expert then they’ve got to give the defendant the benefit of the doubt.
That’s just the nature of our system. You’re innocent until proven guilty. If there are inconsistencies, they’ve got to give the defendant the benefit of the doubt that was created by that inconsistency. Sometimes we don’t even know why, but as long as our expert is qualified, that discrepancy can lead to a judge or jury doubting the validity of the state’s test.
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