How to Beat a DUI Blood Test

By: GA DUI Lawyer William C. Head

A competent DUI attorney will get answers to all of the questions below in a thorough investigation of how to beat a DUI blood test in your State:

A. Whether the blood sample was timely withdrawn by a person legally qualified to do so.

1. Is there a statutory or administrative requirement that a blood sample be withdrawn within a speci¬fied period after a specified event, such as the end of driving?

a. If so, was the requirement complied with in this case?

b. What is the penalty, if any, for failing to comply with the time requirement?

c. When, and how long after the end of driving, was the blood sample withdrawn from the defen¬dant?

d. Was the blood sample withdrawn within a reasonable period after the end of driving?

2. What are the statutory or regulatory credentials for persons to be allowed to take blood under the state blood-drawing statute?

3. Who withdrew the blood sample from the defendant in this case?

a. What are the professional credentials or other qualifications of the person who withdrew the blood sample?

b. If the person who withdrew the blood sample was a nurse, was he or she a registered nurse?

c. If the person who withdrew the blood sample was not a physician or registered nurse, what training had the person received in blood drawing and how much experience had he or she had in blood drawing?

4. Does the blood-drawing statute or rule contain any locational (e.g., from the test subject’s arm) or other requirements related to the withdrawal of blood?

a. If so, were the requirements complied with in this case?

5. Is there a statutory, administrative rule, or common law requirement to preserve a sample of blood after the completion of chemical testing?

a. If so, was the requirement complied with in this case?

b. Where is the preserved sample located?

c. If a sample was not preserved, what is the penalty for failing to do so?

B. Whether an adequate chain of identification and custody can be established by the prosecution.

1. The withdrawal of the blood sample.

a. Who withdrew the blood sample from the defendant?

b. Who witnessed the withdrawal of the blood sample from the defendant?

c. Once the blood was collected in a vial or tube, did the blood collection technician properly invert the blood (not shake it) in accordance with the blood kit package instructions or within accepted industry standards?

d. What statutory or administrative rule requirements are applicable to the withdrawal of a blood sample for purposes of chemical testing?

e. Were such requirements complied with in this case?

2. The sealing of the blood sample.

a. Who sealed the blood sample after it was withdrawn from the defendant?

b. Who witnessed the sealing of the blood sample?

c. What type of seal was applied to the blood sample and how was it affixed?

d. When, and how long after withdrawal, was the blood sample sealed?

e. What statutory or administrative rule requirements are applicable to the sealing of a blood sample?

f. Were such requirements complied with in this case?

3. The labeling of the blood sample.

a. Who labeled, or otherwise marked for identification, the defendant’s blood sample?

b. Who witnessed the labeling or marking of the blood sample?

c. How, and in what manner was the blood sample labeled or marked, according to the person who labeled or marked it?

d. Exactly what was written or marked on the label or container (upon inspection of the vial or photographs/copies of it)?

e. How was the label affixed to the container?

f. When, and how long after withdrawal, was the blood sample labeled or marked for identifica¬tion?

g. What statutory or administrative rule requirements are applicable to the labeling of a blood sample?

h. Were such requirements complied with in this case?

4. Continuous exclusive custody of the defendant’s blood sample prior to shipment to the testing facility.

a. Who was responsible for and who had possession of the sample at all times between the time of withdrawal and labeling and the time of transportation to the blood testing laboratory/facility?

b. Where and under what conditions (e.g., locked storage refrigerator with restricted and documented security access) was the sample maintained or stored during this period?

c. What other persons had access to the sample during this period?

d. What does the written security log show insofar as handling and retrieval of this sample?

5. Transportation of the defendant’s blood sample to the testing facility.

a. What is the name and address of the facility where the sample was tested?

b. In what manner was the sample transported to the testing facility?

c. If the sample was transported to the testing facility by mail –

On what date was the sample deposited in the mail?

By whom was the sample deposited in the mail?

To what address was the sample mailed?

What type of mail was used (certified mail return receipt requested, first class, etc)?
Was the sample shipped with ice packs or other method of refrigeration?

d. If the sample was transported to the testing facility other than by mail –

What method of transportation was used (e.g., in a police car or by courier)?

Who transported the sample to the testing facility?

Was the sample refrigerated during transportation?

In what part of the vehicle was the blood container stored during transport?

On what date was the sample transported to the testing facility?

Who had access to the sample during transportation?

How many other blood samples were transported to the testing facility at the same time?

6. Receipt of the defendant’s blood sample at the testing facility.

a. Who received the sample upon its arrival at the testing facility?

b. On what date and at exactly what time of day was the sample received at (delivered to) the testing facility?

c. Was the blood sample directly delivered to a person at the testing facility, or put in a night box or similar repository?

d. Was any night storage box refrigerated?

e. Who unpacked the sample from its shipping container?

f. Who photographed, copied or otherwise documented the shipping box and its labeling/marking?

g. If an electronic bar code tracking number and label was assigned to this sample, by whom and what method was this done?

h. Exactly what time and date was this done, if a bar code or tracking label was affixed or assigned to this sample?

i. If known, what was the condition of the sample when it arrived at the testing facility?

j. Who, if anyone, identified the sample upon its arrival at the testing facility and how was it logged in and iden¬tified upon being received at the testing facility?

7. Continuous exclusive custody of the defendant’s blood sample at the testing facility until the time of testing.

a. Where and under what conditions was the sample stored at the testing facility?

b. What persons had access to the sample at the testing facility?

c. When was the sample delivered for testing?

d. Who identified the sample at the time of testing?

e. How was the sample identified at the time of testing?

f. How many other blood samples were delivered for testing at the same time?

g. Where is the documentation for the removal of the sample from the refrigerated storage?

h. Does the tracking record show when and at what time the remaining sample was returned to storage?

C. Whether a legally authorized and scientifically reliable method of chemical testing was employed.

1. What method of chemical testing was employed in this case?

2. Has this method of chemical testing been approved statutorily, administratively or judicially in this state?

3. Is this method of chemical testing considered reliable for blood testing under generally accepted scientific standards?

4. Is another method of testing (i.e., a confirmatory test) required under the facts of this case after an initial “presumptive” test?
D. Whether the chemical test involved in this case was properly performed by a qualified person.

1. What statutory or administrative rule requirements are applicable to the performance of the chemical test employed in this case?

a. Were such requirements complied with in this case?

b. Is the state proposing to use documentary proof of the testing person’s credentials, or bring the testing person to court to testify?

c. Is the “qualified person” certified by his/her college degree or by the state crime lab’s in-house program, to conduct testing?

2. Was the chemical test performed in accordance with accepted scientific standards?

a. Were the instruments used in the performance of the test properly certified, calibrated, and otherwise qualified for use?

b. Were the chemical solutions used in the performance of the test checked for qualitative and quantitative accuracy, either by the person who performed the test or by another qualified per¬son?

c. Were the required measurements and calculations properly performed?

d. Did a supervising chemist or toxicologist check the work and the conclusions of the lab tech or the toxicologist who conducted the analysis?

3. What statutory or administrative rule requirements or standards are applicable to persons per¬forming chemical tests on blood samples?

a. Is a permit or certificate required?

b. Was the permit current as it relates to the date of this analysis?

c. Were all administrative requirements complied with in this case?

4. Was the person who performed the chemical test qualified to do so under accepted scientific stan¬dards?

a. What is the person’s educational background and scientific training? (Track down information on degrees, grades, etc.)

b. How many chemical tests of this type has the person performed?

c. Prior to being employed at the crime lab (or testing facility) was any similar “forensic” work done by this person?
CHECKLIST FOR DETECTION OF SCIENTIFIC ERROR IN BLOOD TESTING
A. The withdrawal, preservation, and labeling of the defendant’s blood sample.

1. If the traditional method of blood withdrawal and storage was used –

a. What type (including brand name) of sterilizing agent was used to sterilize the defendant’s arm, and did it contain alco¬hol?

b. How much time elapsed between the application of the sterilizing agent and the insertion of the needle?

c. Was the blood collection syringe needle still in its sheath prior to being used to draw blood, or was it exposed and out of its sheath?

d. In what type of facility was the blood sample taken (hospital, physician’s office, etc.), and were any odors or fumes noticeably present in the air at the time?

e. How much blood was withdrawn from the detainee for the sample?

f. Was the blood collected from the detainee’s forearm or some other location?

g. How much time elapsed between the depositing of the blood sample in the storage container and the capping and sealing of the container?

h. When and exactly how were the blood preservative and the anticoagulant added to the blood sample?

i. What type of blood preservative and anticoagulant were added to the blood sample, and how much of each were added?

j. How, when, and by whom was the blood sample labeled or otherwise marked for identification?

k. What color(s) were the stoppers on any blood collection vials used?

l. If one or more aborted attempts were made to collect the blood, describe in detail all efforts and the cause of each aborted or failed effort.

2. If a blood collection and storage kit was used –

a. What type of blood collection and storage kit was used? (If not known, describe the size, shape and color of the package that you saw.)

b. What instruments, devices and materials were contained in the kit?

c. What instruments, devices or materials not contained in the kit were used in the course of with¬drawing, sealing, labeling, and storing the blood sample?

d. What are the exact provisions of any instructions contained in the kit, and to what extent were they followed?

e. If the instructions contained in the kit were not followed to the letter, exactly what procedures were followed?

f. What are the exact provisions of any manufacturer’s certificate of instructions contained in the kit?

g. When was the shipment that contained the collection kit used in this case received from the manufacturer, and by whom was it received?

h. Were the kits in that shipment checked or sampled (randomly or otherwise) for compliance with the manufacturer’s certificate? If so, give details of how, when and obtain records from such verification.

i. When and by whom was the blood sample withdrawn from the defendant?

j. How, when, and by whom was the defendant’s blood sample labeled or otherwise marked for identification?

k. Who was present and acted as a witness to the blood collection process?

l. How much blood was withdrawn from the defendant for the sample?

B. Whether the blood sample obtained from the defendant was representative of the blood needed for testing.

1. How much time elapsed between the commission of the alleged offense and the withdrawal of the blood sample?

2. How much time elapsed between the detainee’s last consumption of alcohol and the withdrawal of the blood sample?

3. When did the detainee last operate any motor vehicle that is claimed to have been the basis of the DUI-DWI or BUI-BWI offense?

4. If the defendant was given medical treatment prior to the taking of the blood sample –

a. Was the defendant given any drugs or medication prior to the taking of the blood sample?

b. Was the defendant given any fluids intravenously prior to the taking of the blood sample?

c. Was the defendant given a blood transfusion prior to the taking of the blood sample?

d. Prior to the blood being drawn, was the defendant given any type of medical treatment or emergency care wherein either topical anesthesia or oral medication was administered?

C. Whether the integrity of the blood sample was maintained through the completion of testing.

1. What type of preservative (bacteriastat) was added to the detainee’s blood sample, how much was added, and when was it added?

2. What type of anticoagulant was added to the defendant’s blood sample, how much was added, and when was it added?

3. When and by what method was the defendant’s blood sample sealed, and what type of seal was used?

4. Was the seal on the defendant’s blood sample broken, damaged or tampered with at any time prior to the time of testing?

5. Was the defendant’s blood sample at any time accessible to persons other than those responsible for its custody?

6. If more than one test was performed on the defendant’s blood sample, was the sample sealed and preserved between tests?

7. If additional testing beyond the first analysis was performed, was the blood collected for both analysis from the same vial or from different vials?
D. Whether the defendant’s blood sample was properly and accurately tested.

1. If the blood sample was tested by gas chromatography –

a. Was liquid blood or headspace vapor tested?

b. If liquid blood was tested –

How much blood was injected into the chromatograph for each test performed, and how and by whom was it measured?

c. If headspace vapor was tested –

How and under what conditions was the headspace vapor obtained?

How much headspace vapor was injected into the chromatograph for each test performed, and how and by whom was it measured?

d. How, when, and by whom was the chromatograph used in testing last calibrated prior to its use in this case?

What was the base liquid and chemical composition of each calibrating sample used?

Who prepared the calibrating samples?

When were the calibrating samples prepared?

e. What was used as the internal standard for the chromatograph?

What was the concentration of any alcohol contained in the internal standard?

What was the concentration of other chemicals contained in the internal standard?

Who prepared the internal standard, and when was it prepared?

What quantity of internal standard was added to the test sample and how and by whom was it measured?

f. How many tests were performed on the defendant’s blood
sample?

g. What were the chromatograph readings for each test, and how was each reading converted to BAC?

h. What other substances were found in each sample of blood tested, and what were the chromato¬graph readings for each substance?

i. What was the identification number of the chromatograph used in testing?

j. What was the maintenance record of the chromatograph used in testing?

k. Did the person who performed the test personally check the composition of each chemical solution used either in directly testing the blood sample or in calibrating any instrument or device used in testing the sample?

l. Who performed the test, and was such person certified or otherwise qualified to do so?

2. If the blood sample was tested by enzymatic oxidation –

a. Who prepared the testing solution, and when was it prepared?

b. What were the contents of the testing solution?

c. What was the concentration of NAD in the testing solution?

d. What quantity of testing solution was used in each test performed?

e. What quantity of blood was added to the testing solution in each test performed?

f. How much NADH was formed in the reaction between the blood and the testing solution?

g. How was the NADH measured?

h. If the NADH was measured photometrically, how and when was the photometric instrument last calibrated prior to its use in this case, and who calibrated it?

i. Was whole blood, blood serum, or blood plasma tested?

If blood serum or plasma was tested, did the test results reported represent the BAC of serum, plasma or the BAC results of whole blood?

If blood serum or plasma was tested and if the reported test results represent the BAC of whole blood, how was the BAC of whole blood calculated? (Find out the multiplication factor utilized.)

j. Was the hematocrit of the defendant’s blood checked or ever determined?

k. If an automated instrument was used to test the blood sample, how many other samples were tested in the same run?

l. Who was the manufacturer of any automated instrument or machine used in testing the blood sample, what was its identification number, and what was its maintenance record?

m. Did the person who performed the test personally prepare or check the composition of each chemical solution used either in directly testing the blood sample or in calibrating any instru¬ment or device used in testing the sample?

n. Who performed the test, and was such person certified or otherwise qualified to do so? (Check for permit dates – beginning and expiring.)

o. Is the method of analysis used in this case approved by statute or regulation for use as a forensic test in cases involving allegations of criminal offenses?

3. If another method of chemical testing was used –

a. What method of chemical testing was employed?

b. What procedures were followed, and what type and quantity of chemicals were used?

c. How was the amount of ethyl alcohol in the blood sample measured?

d. How, when, and by whom was any photometric or other measuring instrument used in the test last calibrated prior to its use in this case?

e. Did the person who performed the test personally prepare or check the composition of each chemical solution used either in directly testing the blood sample or in calibrating any instru¬ment or device used in testing the sample?

f. Who performed the test, and was such person certified or otherwise qualified to do so?

E. Whether adequate steps were taken to detect the presence of random or human error in the perfor¬mance of the chemical test.

1. Was more than one test performed on the blood sample?

2. If only one test was performed on the blood sample, why were other tests not performed?

3. If more than one test was performed, what were the results of each test?

4. Is replicate or multiple (duplicate) testing required by statute or administrative rule in this state?

5. Is the reported result the average or mean of multiple analysis, or the lowest result obtained?

F. Whether adequate steps were taken to detect the presence of systematic error in the laboratory or clinic where the blood sample was tested.

1. When did the laboratory or clinic where the blood sample was tested last participate in a proficiency testing program?

2. Who sponsored the proficiency testing program last participated in by the testing laboratory or clinic, and how many other laboratories or clinics participated in the program?

3. What were the results of the last proficiency testing program?

4. If the testing laboratory or clinic does not participate in proficiency testing programs, what are its reasons for not doing so?

5. Does the testing laboratory or clinic employ any other procedures or practices that are designed to detect the presence of systematic error?

6. Are there statutory or administrative rule requirements pertaining to proficiency testing, and were such requirements complied with in this case?