Under Virginia law, a motorist is required to take a breath test if they are travelling on a public highway and validly arrested for DUI. The accused no longer has the right to choose between a blood test and a breath test. A breath test must be taken unless one is unavailable or the accused is physically unable to take a breath test. In that case, a blood test must be offered.
Blood test cases are difficult for prosecutors. There is a long list of foundational requirements set forth in the Virginia Code that prosecutors must comply with in order to get the results of a blood test admitted into evidence. The person drawing the blood must be of a certain background and must be designated by an order of the circuit court, which the prosecutor needs to have at trial. The blood must be drawn, packaged and processed in a very specific way. Failure on the part of the prosecutor to lay a proper evidentiary foundation in these areas can result in the blood alcohol result not being allowed into evidence - assuming the defense attorney makes an objection. By way of example, the code requires that an approved vial be used to collect the blood sample. This may seem like a meaningless requirement, but it is quite important. The approved vial contains an anticoagulant and preservative which prevents microorganisms from fermenting blood sugars into ethanol. If fermentation occurs, the amount of alcohol in the blood will be grossly overstated when tested at the lab. Despite the obvious importance of this issue, from time to time witnesses cannot establish that an approved vial was used. In those cases, the results of the blood test must be excluded. It should also be noted that a defendant has the right to have his blood tested by an independent laboratory. However, the state is only required to preserve the blood sample for 90 days. Accordingly, time is of the essence in making such a request.
After some recent court decisions, the defendant now has the right to force the prosecution to produce the lab technician that performed the analysis of the blood. Blood is analyzed in Richmond, Virginia. Accordingly, a lab technician from Richmond must travel to Fairfax to testify in blood cases.
Request your free copy of Understanding and Navigating the DUI/DWI Process and contact us for a free, no-obligation consultation on your Fairfax DWI/DUI case.
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Fairfax, VA 22030