Why are Virginia DUI “blood draw” cases different, and some information that you need to know?

If you are facing a Virginia DUI charge, you are likely overwhelmed with anxiety.  At Abrenio Law, we believe that one of the best ways to calm fears is to understand the charge against you.  Therefore, we’ve created our DUI Practice Page where we’ve answered many questions that you may have or haven’t even thought to ask.

In this post, we wanted to talk about DUI charges that specifically involve “blood draws.”  Stated another way, when you were arrested for a DUI, instead of undergoing a breath test, law enforcement (or medical personnel) drew your blood to measure your Blood Alcohol Level (BAC).  While, in general, blood draws are more accurate at calculating your BAC, they present complexities for prosecutors in court because there are several facts they must prove to ensure the test results are admissible. 

Here’s some information you should know to help your attorney identify issues in your case:

Did they arrest you within three hours of driving?

Under Virginia Code Section 18.2-268.2, for you to have given your consent to have your blood taken, you must have been arrested “within three hours of the alleged offense.  Ordinarily, this means that you must have been taken into custody within three hours of driving.   

The “Three Hour Rule” is somewhat arbitrary.  If violated, and the trial court gets it right, your blood test results should be thrown out.  To be clear, however, if you win on this issue, you don’t automatically win your DUI case.  Indeed, it is possible to be convicted of a Virginia DUI with no BAC evidence.  However, it makes the prosecutor’s job much harder.

Why did they take your blood in the first place?

Another issue presented by Virginia Code Section 18.2-268.2 is why they gave you a blood test rather than a breath test.  Indeed, the Code states:

B. Any person so arrested for [a Virginia DUI] shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given…

There is a clear preference under Virginia law for a DUI suspect to be given a breath test rather than a blood test.  This is likely because injecting someone with a needle is much more invasive than asking them to blow puffs of air into a machine. 

If you were given a blood test, your attorney will need to know why.  Was the breath test not available?  Or were you physically unable to provide a breath test? 

The case of Pearson v. Commonwealth, 43 Va. App. 317 (2004) considered “physical inability” as it relates to Virginia law.  The Court ultimately found the defendant to have been physically “unable” to take a breath test when he burped three (3) times and informed the investigating officer that indigestion from the chili he ate was giving him problems.  According to the Court, it was therefore reasonable for the officer to subject the defendant to a blood test.

It’s important that you walk your attorney through the details of how you came to submit to your blood test like they did in Pearson.

Did they draw your blood correctly?

When completing blood draws, Virginia Code Section 18.2-268.5 requires law enforcement to follow specific protocol.  Specifically, the law requires that:

… only a physician, registered nurse, licensed practical nurse, phlebotomist, graduate laboratory technician or a technician or nurse designated by order of a circuit court acting upon the recommendation of a licensed physician, using soap and water, polyvinylpyrrolidone iodine, pvp iodine, povidone iodine or benzalkonium chloride to cleanse the part of the body from which the blood is taken and using instruments sterilized by the accepted steam sterilizer or some other sterilizer which will not affect the accuracy of the test, or using chemically clean sterile disposable syringes, shall withdraw blood for the purpose of determining its alcohol or drug or both alcohol and drug content

Stated another way, Virginia law requires that the blood draw:

  • Be conducted by a properly certified expert;
  • That that expert be designated by the Circuit Court of the jurisdiction;
  • That they use proper solution to clean your skin before injecting you with a needle; and
  • That they use appropriate and properly sterilized equipment to draw your blood.

These procedures are required by Virginia law to maximize the chances of accuracy.  However, when they fail to do so, your attorney must challenge your blood test results.

Transmission of your blood and “chain of custody.”

Another aspect of your DUI blood case is how your blood samples were sent from your testing location to the Department of Forensic Sciences (DFS).  Indeed, Virginia Code Section 18.2-268.6 requires the following:

  • That proper vials be used to store your blood;
  • That proper certificates be completed to ensure your blood is not mistaken for other samples;
  • That your blood be properly packaged to ensure that it’s not damaged or tampered with in transit;
  • That your arresting officer (or another law enforcement office) ensure your blood is properly transported to the Department of Forensic Science. 

You may believe that proving compliance to Section 18.2-268.6 is straight forward.  But it can be complicated for prosecutors because it requires multiple people to come to court.  This is to prove “chain of custody” of your blood while in transit to DFS. 

This means the prosecutors should be required to present the following people at trial:

  • The person that actually conducted your blood draw;
  • The officer that took custody of your blood samples after the draw was completed;
  • The person from DFS who ultimately received the blood samples; and
  • The person that actually received the blood samples for purposes of testing.

From a logistical standpoint, it can be complicated to get all of these people to court.  Given that, many jurisdictions (including Fairfax) have created “Blood Dockets.”  These dockets are simply regular days in which Virginia DUI blood draw cases are scheduled so that employees of the police department and DFS know they need to be in court to testify.  In practice, this has aided prosecutors in pursuing blood draw cases.

One thing you may notice from Code Section 18.2-268.6, however, is that your blood samples are authorized to be transported by mail.  While it would seem that this violates the chain of custody, because your blood samples leave possession of law enforcement, the Virginia General Assembly has permitted this by statute.  Therefore, most courts will admit your blood test results even though they were sent through the mail.  

How did they test your blood (Gas Chromatography)?

As discussed above, the person that tested your blood is required to be in court to testify about the chain of custody of your blood samples.  They are also required to be there to testify about your specific test.  Indeed, the United States Supreme Court, in Bullcoming v. New Mexico, 564 US 647 (2011) specifically found that the analyst (or an analyst that observed the test) must be in court to testify about your specific test. If not, your test results are in admissible. 

In Virginia, the most common testing method is the “Gas Chromatography.”  Here’s a link that provides a basic understanding of how these tests work.

Should your analyst show up to court, they will be prepared to testify well about your case.  They are expert witnesses who train specifically for this testimony.  To be successful in rebutting their testimony, we believe you’ll likely have to hire an expert to evaluate their testing methods and results, and ultimately tell a judge why they are wrong.  However, even then, it can be an uphill battle.

Did they preserve two samples?

Another aspect of Virginia DUI blood draws is the requirement that DFS preserve two samples of your blood.  This allows you to get your own test completed.  Indeed, Virginia Code Section 18.2-268.7(b) requires that your second blood sample be preserved for at least 90 days.  After which, DFS will destroy the second sample. 

Whether you should seek your own testing will depend on the facts and circumstances of your case.   

So, James, what should I do with this information?

At Abrenio Law, our job is to educate people so they can ask better questions and make better decisions.  This post is not intended to cover the entire body of Virginia DUI law.  But, hopefully, it helps you identify some important issues in your own case to facilitate discussions with prospective attorneys. 

Should you hire us, we encourage you to ask questions.  If we work together, we are a team. 

Still have questions?

Make sure to check out our Virginia DUI Practice Page where we’ve answered many other questions you likely have.  James Abrenio is a Fairfax-Based Personal Injury & Criminal Defense attorney who practices throughout Northern Virginia. You can learn more about James Abrenio, some of our Prior Results, and Read Our Reviews.  Make sure to contact us at Ph. 703-570-4180 for your Free Consultation.