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Blood Case Procedures | Presumptions
Virginia DUI/DWI; Blood Cases
In Virginia, an individual does not have discretion to choose between a breath or blood test and due to implied consent, may be required to provide a blood sample. However, the statute requires a breath test except under several situations. More Implied Consent These situations can include:
- Unavailability of the breathylizer device
- Individual's inability to provide a breath sample
- Officer's belief the the individual may be influenced by drugs
These cases often arise where a driver is involved in an accident and is taken to the hospital. Where the officer suspects alcohol or drugs is involved, the officer may have blood drawn for testing. In these cases, statutes require specific procedures regarding who may draw blood and the methods used. Virginia Code §18.2-268.5 requires:
For purposes of this article, 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...
Once the blood has been drawn, §§18.2-268.6 and 18.2-268.7 of the Virginia Code outline specific procedures for the handling of the blood, its transportation to the Department of Forensic Science and methods of testing. Each procedure must be followed to ensure the integrity of the blood sample which includes:
- placement of the blood within approved vials
- the vials being properly sealed
- the completion and attachment of certificate of blood withdrawal forms to each vial
- each vial properly identified with the individual's name, the name of the person taking the blood sample, the officer's name, and the date and time the sample was taken
- the vials being placed in approved containers and properly sealed
- the prompt delivery of the vials by the arresting or accompanying officer to the Department of Forensic Science
After the blood has been tested, the Department of Forensic Science will generate a certificate of analysis. This certificate will contain the individual's blood alcohol or drug content, identifying information for the individual and a recitation of the procedures used to test the blood. Once completed, the certificate of analysis will be attached to the withdrawal certificate and transmitted to the clerk of the court where the case is pending.
Attorneys who handle these cases will:
- know the procedures to be followed in blood cases
- ensure that the proper individuals withdrew the blood and followed required methods
- challenge each procedural step for accuracy
- follow statutory procedures for obtaining an independent blood analysis
As with breath cases, the certificate of analysis in blood cases is allowed a "fast track" into evidence. More on Certificates Virginia Code §18.2-269 explains the effect a blood alcohol reading has on an individuals' case as found on the certificate of analysis. The results of a breath or blood test are afforded certain rebuttable presumptions depending upon the BAC reading. As a presumption, the court or jury will accept as true an individuals' BAC while operating a vehicle is the same as reflected on the certificate. This may be true even if nearly three hours has past from the time the person gives a sample from the time of the vehicle's operation. The following outlines these presumptions:
presumption of influence of drugs presumption of influence of drugs presumption of influence of drugs presumption of influence of drugs