Under Virginia law, a person has the right to have the sample of blood that is taken after arrest for a DUI tested independently. The results of this independent test may be usable as evidence for the defense in the DUI case. However, there is a procedure in Virginia for how this is testing is done, making it helpful to work with a Virginia DUI lawyer, who understands this process.
Typically, the Code of Virginia requires, that when blood is taken at a hospital after a DUI arrest, that two samples of the blood are taken. The first sample is sent to the department of forensic science and tested. The second sample is reserved for independent lab analysis.
In order to get that second sample tested, the attorney must file a motion for lab analysis within 90 days of the date of the arrest. That lab analysis will be sent to the independent lab of the attorney’s choosing, at a cost to the attorney and the client, and there it will be analyzed. The results of that test are returned to the attorney for use in trial if necessary.
There are a variety of independent labs in Virginia. One of the most common labs is the Virginia Commonwealth University Lab, which is a teaching lab for controlled substances, analysis, and other alcohol testing. This is the most common lab that is used for independent lab analysis. If a person waits for more than 91 days after the date of the arrest and then asks for an independent lab analysis, that person will be barred by statute. There are important time considerations for someone who is deciding whether or not to use the time and resources to ask for a second sample analysis.
There are a variety of reasons why a person would have independent blood testing done. Number one, a person thinks that the testing methods of the Department of Forensic Science may be inconclusive or incomplete. Number two, a person wants to get a second opinion as to whether or not the sample was accurate. Under certain circumstances, the testing methods may be different at different labs for the testing of certain types of drugs and a person wants to explore all reasonable methods that may lead to the exclusion of certain types of drugs.
If a person wishes to have a second sample used as evidence, this is a statutory process. Typically, the party that is seeking to have the second sample must follow proper foundation procedures and other evidentiary requirements, just as the commonwealth must, to get the sample introduced. This may include subpoenaing persons involved in testing and that are in custody of the sample, as well as lab technicians from the independent labs on the defense side.
Typically, people who did the sample would not be experts. They may be called in to testify as to what they did and what the results were. But there will be two different processes to have them subpoenaed and called to testify as lay witnesses to the actual testing and what testing was done. An expert may testify as to what the testing may mean and what type of testing was appropriate. This will also depend on what type of person did the secondary lab analysis, what type of procedure was done, and the experience of the tester.
Patrick Woolley Attorney At Law