Albuquerque DUI Lawyers: Challenges to a DWI Blood Test
Most people expect to be asked to take a breath test if they are arrested for DWI. Sometimes for various reasons the officer conducts a blood test instead. Although often thought to be more accurate than breath tests, blood tests are not infallible. Mounting an effective challenge requires our Albuquerque DUI lawyers.
Here are some of the methods a knowledgeable DWI attorney may use.
Right to Confrontation
Unlike a breath test case—where the breath testing machine prints out a ticket immediately—a blood test case requires that the blood samples be sent off to be tested by someone else at a later time. The 6th Amendment gives criminal defendants the right to face-to-face confrontation with the witnesses against them. This means that if the lab technician who tested a driver’s blood isn’t available to testify, the lab results are inadmissible.
The testimony of lab technicians in these cases can be in high demand. And while courts are reluctant to dismiss criminal cases for scheduling issues, your Albuquerque DUI lawyers will know how to enforce your rights to a speedy trial under the court rules. He could possibly get your case dismissed if trial scheduling takes too long. In other cases, these scheduling issues can be used as a bargaining chip with the prosecutor to reach a more favorable resolution.
Timing of the Blood Test
New Mexico used to have a rule that if a blood test was taken more than two hours after a defendant was arrested, the blood test result was inadmissible. These were rules promulgated by the Scientific Laboratory Division. However, the legislature has since amended these rules to allow admission of blood tests taken at any time after arrest, but has specifically noted that tests taken more than three hours after driving are to be given only the weight they deem necessary. Our Albuquerque DUI lawyers will know how to make best use of this delay when arguing to a jury that the results are not an accurate reflection of impairment at the time of driving.
Search Warrants
In a New Mexico DUI/DWI involving serious injury or loss of life or where the driver has three or more prior DWI related offenses, an officer can bypass the driver’s choice to take or refuse a blood test by applying for a search warrant to a judge.
Search warrant applications are a complicated and technical process. Your Albuquerque DUI lawyers will know what procedures need to be followed for a valid warrant (such as the search warrant only being issued upon a sworn affidavit) and whether the search warrant affidavit contains facts sufficient to establish probable cause that the defendant committed a crime.
One common example occurs when there is serious doubt as to who was driving a vehicle involved in an accident. Officers often have to rely on 911 calls or witnesses to establish if an intoxicated person on the scene was a vehicle’s driver. Failure to explain in the affidavit why this person is reliable can get the seizure of the defendant’s blood ruled illegal.
Inappropriate Collection and Storage Procedures
New Mexico regulations lay out the procedures that must be followed on every collection of a blood sample. These include that chain of custody be established (so that it is clear that the sample is connected to a specific defendant), that the blood draw site be cleaned with a non-alcohol sterilizing agent, and that a sufficient amount of enzyme poison be present in the blood collection tubes.
While these requirements are not overwhelmingly difficult to meet, they are also not necessarily fool-proof. Your Albuquerque DWI attorney will know when it is appropriate to conduct an investigation into the procedures used for a blood draw and how to convince a judge to keep the test out or a jury to discount the reliability of the test results.
Contact an Experienced DUI/DWI Attorney in Albuquerque
If you have been arrested for DWI, do not plead guilty before consulting a DWI attorney. Even if your breath or blood tested over the limit, your case may still be defensible. Call Salim A. Khayoumi at 505-333-8613 for an evaluation of your options.
