Motion for Blood or Urine Sample to be Split
New Jersey DWI attorneys preparing to defend DWI / DUI cases typically make pretrial motions that can improve an accused driver’s prospects in court. A pretrial motion is a formal request to the court to take a certain legal action. One common motion in New Jersey driving while intoxicated cases is a request to have a blood or urine sample split to allow independent testing.
Chemical test results are typically a key piece of prosecution evidence in a driving under the influence case. A chemical test result that shows a blood alcohol content (BAC) of .08 percent or greater – the legal per se limit for driving – can seem like damaging evidence. However, chemical tests can also be a potent weapon for the defense.
When motions to split blood or urine samples are approved, the defense attorney can send the sample to a private lab for testing. An independent forensic toxicologist can analyze the driver’s blood or urine sample and determine whether proper testing procedures were strictly followed.
Motions to split blood or urine samples can be extraordinarily fruitful in drunk driving defense. The collection of blood and urine samples must be done according to strict guidelines, and police, phlebotomists, and lab technicians don’t always follow that protocol. If the sample wasn’t collected, stored and analyzed correctly, the driver’s BAC result may be inflated.
Independent testing can be done to show that the sample naturally produced its own alcohol, or neogenesis of alcohol. This can be caused by bacteria that entered the sample through properly unsealed tubes.
Testing can also show if there was not enough preservative or anti-coagulant in the tubes, which could result in clotting or micro-clotting that could contaminate the sample.
Blood samples should be drawn with sterile, dry hypodermic needles and a syringe or a clean, dry vacuum type container. The person drawing the blood must not use alcohol to clean the driver’s skin, or the equipment used in the collection.
The blood should be drawn into a tube that contains a mix of anticoagulant and preservative. If the mixture of the anticoagulant and preservative isn’t correct, the results of the test may be invalid.
Sometimes a driver’s blood or urine sample in a DWI / DUI case gets lost or destroyed. Police and prosecutors aren’t required to collect evidence that benefits the defendant, but once the evidence is collected, they have a duty to preserve it. If authorities fail to preserve that evidence, skilled NJ drunk driving lawyer will request sanctions which may result in the exclusion of the evidence or the dismissal of the case.
However, the defense must prove that the police or prosecution acted in bad faith in order to win sanctions or a dismissal. If the defense cannot establish bad faith, the defendant is entitled only to recognition that evidence that may have pointed to his or her innocence has been lost.
Chemical test results are compelling evidence for the prosecution in a New Jersey DWI / DUI case, but a test result of .08 percent or greater BAC doesn’t equal an automatic conviction. A New Jersey DWI defense lawyer skilled in drunk driving defense may make a motion to have a blood or urine sample split and have it analyzed by an independent expert to create reasonable doubt in the defendant’s guilt.
The DWI attorneys at Levow DWI Law have undergone extensive training in blood and urine testing issues. We attend national seminars to learn about these issues so that we can use as much knowledge and information as possible to fight for you.