In every DUI case, some form of alcohol test will be administered to prove intoxication. Most commonly, law enforcement will administer a breathalyzer alcohol test, but if the accused is unable to give, or refuses to give a breath test, they may be transported to a local hospital so a blood test can be performed. Virginia statute requires one of these two tests to be performed in all DUI cases.
If you were arrested for driving under the influence, and a blood test was performed, you have the right to send that blood sample to a third party for independent testing. If there is concern that the test was performed incorrectly, a seasoned DUI attorney may advise you to request independent blood testing in your Leesburg DUI case.
Initial blood DUI tests in Virginia are administered and recorded at the nearest hospital. The hospital will take two samples from a blood kit. That Virginia Department of Forensic Science-approved blood kit takes two vials of blood, and both are sent to the Virginia Department of Forensic Science, also known as DFS.
The samples will then be sent to a controlled laboratory to run tests on the blood to verify the alcohol content. However, only one of the samples will be used by the state for testing purposes. The other sample will be held for 90 days so the defendant could send the sample to a third party for independent testing. After 90 days have passed, the sample may be destroyed, and the accused forfeits their right to have their own test run on the blood.
To get independent blood testing in Leesburg DUIs, a defendant and their attorney must file a motion in court to have the second sample sent to a previously selected third-party laboratory. The defendant is responsible for paying all laboratory and transfer fees. The results of the independent test will be sent to the defendant and their lawyer.
Requesting an independent blood test does not automatically enter the results into evidence. Rather, the results can be analyzed and entered into evidence by the defense if they are beneficial. Conflicting blood test results from a third-party could discredit the results of the prosecution’s test. If the second sample or the results from it are lost at any point during the test process, the prosecution’s initial test may become inadmissible as evidence as the defendant would no longer be able to verify results for themselves.
A skilled criminal defense attorney may recommend independent blood testing in Leesburg DUI cases when the state’s reading is right at an important threshold. If the prosecution’s blood test puts the defendant exactly at the legal limit, a discrepancy between two independent tests of the same blood could cast doubt on the veracity of the state’s evidence. Likewise, if a defendant is on the cusp of getting enhanced punishment for an elevated blood alcohol content (BAC), running another test could potentially help the defense undermine the state’s evidence.
If there is variation in the results of the two tests, a lawyer may do research into a person’s health history to determine if there may be any confounding variables that could lead to a false positive test for law enforcement. In some cases, the toxicologists that performed both tests may be called in to give expert testimony on the testing process to determine if there was a mistake in the procedure.
After being pulled over for a DUI, some form of alcohol test or another is coming. If you received a blood test after a DUI arrest, you have the right to have a third party conduct their own test of the same sample on your behalf. Independent blood testing in Leesburg DUI cases could make the difference in the outcome. For more information on DUI testing and the procedure in Leesburg, contact a seasoned criminal defense lawyer today.
Patrick Woolley Attorney At Law