Although blood testing is a far more accurate determination of blood alcohol content (BAC) than breath, you cannot choose to give blood instead of using the Alcotest: it’s up to the officer who arrested you.
Is DWI Blood Testing Mandatory?
No, you can refuse to give blood, and it cannot forcibly be taken from you. You cannot be charged with “refusal”, since the Refusal statute only addresses the failure to submit to chemical breath testing.
When Can They Take My Blood?
The officer only needs “probable cause,” a reasonable belief that you are under the influence, to request a blood sample. The blood can only be extracted in a “medically acceptable manner,” by a person licensed to do so. This is usually done at a hospital.
New Jersey, unlike most states, does not have any regulations about who may draw the blood, how the blood must be drawn, how it must be handled and then how it must ultimately be tested. There are, however, proper ways to do all of these things, based on standard protocols.
Are Blood Tests Always Right?
As we mentioned earlier, DUI blood testing is the gold standard in terms of scientific reliability. But just like all tests, it relies in large part on the decisions and discretion of individual police officers who are, after all, human. Mistakes are made. Errors occur. Without a thorough evaluation of the evidence, however, possible defenses cannot be determined.
Your attorney should be prepared to fully evaluate the evidence, making sure that the proper items are provided by the State to assess your case.
Potential defenses can involve common testing errors, like:
- Was an alcohol swab used that would then affect the alcohol content in your blood?
- Where was the blood drawn from, artery or vein?
- Was the proper amount of blood drawn into tubes that contained the right amount of preservative and anti-coagulant?
- Were the tubes defective in any way?
- Was the blood sample contaminated in any way by the phlebotomist, the subsequent handling of the blood, or through the testing process?
- Was the sample properly tested at the lab?
- Can the State demonstrate proper “chain of custody,” that your blood was handled correctly throughout the process?
Contact A DWI Defense Attorney
At Levow DWI Law, P.C., we limit our practice to defending DWI. Each year, we handle multiple blood cases and have developed a proven track record of suppressing these often-faulty tests as admissible evidence. Contact our DWI and DUI defense lawyers today for a free consultation.
