In many years of practice as a DUI defense lawyer I have learned that easily the most challenging and complicated issues in any DUI case have to do with blood draws and their analysis. Especially in felony DUI cases involving death or serious bodily injury where the stakes are the highest, most often the DUI defense attorney is confronted with a blood draw performed on his client and later analyzed either in a hospital toxicology lab or a police toxicology lab.
In almost every DUI where a blood draw is done, a traffic crash had occurred. In most of these cases there are two, and sometimes three, approaches for challenging blood evidence.
The first consideration is whether the blood was lawfully obtained. An examination of the facts surrounding the draw itself is critical. In cases where there is no death or serious bodily injury and the client is conscious and appears at a facility for treatment, most often the question is whether a breath or urine test implementation was impractical or impossible. If the client is unconscious a careful examination of the facts surrounding the accident is most important to determine whether the client was at fault.
It is through the favorable development of facts and circumstances that provide the answers to these questions that the DUI defense practitioner can best assist his client and exclude from use this type of evidence. There should be no mistaking that in any case, whether felony or misdemeanor, where a DUI blood draw has been analyzed the State places the highest priority on its use against the defendant.
The DUI defense attorney, must and without exception, become completely versed and thoroughly knowledgeable of the law and issues impacting the use of this type of evidence. Mr. Canet, as a Florida criminal defense attorney with a heavy practice emphasis in the field of DUI in Fort Lauderdale in Broward County, Miami-Dade County and West Palm Beach in Palm Beach County and the rest of Florida, has devoted many years of training and education in all issues pertaining to blood evidence.
There are many facts that often are discovered by the defense attorney that will answer questions concerning the legality of the blood draw. The first is whether there existed probable cause to believe that the client was operating a vehicle while under the influence of drugs or alcohol. In cases where there is death or serious bodily injury there must also exist PC to believe the defendant caused the accident that resulted in the death or serious bodily injury. In every case "under the influence" equals under the influence to the extent that "normal faculties were impaired."
After questions concerning the initial legality of the draw have been settled then the attorney must turn his attention to the toxicology laboratory that analyzed the blood. It must be understood that there are two types of labs and two types of analysis performed to look for and quantify two types of impairing substances.
First there is the police lab that is required to follow the Florida Department of Law Enforcement promulgated regulations pertaining to blood withdrawal, collection, storage and analysis. Then there is the hospital toxicology lab that is under no such similar law enforcement limitation. The hospital lab always analyzes serum blood while the police lab must analyze whole blood. The type of blood analyzed will impact the results of the analysis. The police lab must use a method of analysis that employs an internal standard and must use gas chromatography. The hospital lab is free to use whatever method and equipment it chooses. Hospital labs usually perform a general screen type analysis using a procedure involving some sort of chemical reaction.
Lastly, each lab is looking for either alcohol or drugs. As shown, there are many important considerations when dealing with labs and the people that work in them. Especially those that call themselves "experts." The effective DUI practitioner must be prepared to take on all these challenges in a way that will best serve his client.
There is much more to be said on this topic and this post will be regularly updated by Carlos A. Canet, Fort Lauderdale DUI defense attorney.
