Tuesday, February 10th, 2009
The New Jersey police agencies rely on the alcotest machine to produce hard evidence that a driver is drunk. However, there are times when the police will seek to obtain obtain a blood test. In most cases, a blood sample will be taken if a DWI defendant has been injured in a car wreck.
You cannot choose whether to give blood or breath: it is up to the officer who arrested you. You can refuse to give blood, and it cannot forcibly be taken from you. You cannot then be charged with “Refusal”, since the Refusal statute addresses only the failure to submit to chemical breath testing.
The officer only needs probable cause to believe that you are under the influence to request blood be taken from you. The blood can only be extracted in a “medically acceptable manner” by a person licensed to do so. Any blood tests are usually performed at a hospital.
In New Jersey unlike most other 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, based on the standard protocols.
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. Mistakes are made and errors invariably occur. Unless a thorough evaluation of the evidence is made many possible defenses may never be determined.
Some of the items to evaluate are:
- 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 a 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 phlebotemist, 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” or handling of the blood throughout the process?
