If your blood is drawn by a warrant, which means that you did not give your verbal consent, then your license will be suspended automatically within 14 days. That suspension is a one-year suspension unless within the prior seven years you have a prior implied consent suspension. So for most people if you refuse to take a breath, blood or urine test, your license will be suspended for one year. Within that 14-day period you have the right to appeal that determination.
If a blood test is taken, we want to make sure that the procedure was followed correctly. One of the things obviously to look for is whether an alcohol swab was used. Blood tests are most often done at the Michigan State Police crime lab, so the blood gets sent there. So there’s a chain of custody question as to how it got from the client’s arm into the lab where it’s being tested. So that is an issue to look over every time too.
And the blood that is not tested at the Michigan State Police lab, if it’s done at a hospital, the procedure that is followed, it is important to know the procedure—are they doing a whole blood test, or a serum test, because that can have a big impact on what that number, the blood alcohol level coming back from the test says that the blood is.
So there have been issues with some very, very high blood alcohol levels, but there’s a big question as to whether that is an accurate test. The other thing that we do in blood cases is request the complete blood work on the tests that were done that day. So we are not just looking at our client’s two tests, we are also looking at other samples and controls that were done that day to see if there are other issues with any of the other tests.
And sometimes that can be helpful. We had a client with a test that was very far off, the two tests, and the result that was given to us was just the higher of the two, not an average, and certainly not the lower of the two tests. And we were able to use that successfully to have the prosecutor reduce that to a littering charge. So it can have a big impact on a case.
With a blood test, there are essentially six different categories into which a potential defense for contesting a blood test might fall.
The first is the blood draw. Was the blood properly drawn from your arm? In other words, was the area of the blood draw or the puncture properly disinfected? Did they use the right type of disinfectant? And did they use the right type of equipment in drawing the blood itself? Was the individual who drew your blood properly trained? And were they operating under appropriate legal authority?
The second category of defense would be the transportation of the blood sample itself. Rarely is the blood tested at the hospital where it was drawn, so it’s usually sent to the state laboratory in Lansing, which obviously involves transportation. If the blood was improperly transported using the appropriate storage equipment or was it mishandled during the transportation, then there might be a defense.
The same is true with regard to the storage of the blood, which is the third category. The storage of the blood includes both before and after it is received by the laboratory. Did the police station store it for any period of time? And if so, under what conditions was it stored? And how was the blood stored once it got to the laboratory? Storage itself can have an impact on the alcohol in the blood sample or on the type of result that is reported.
The next or fourth area of potential defense would be the preparation for testing. Before the blood sample can be tested it has to be prepared for testing, which includes mixing it with some other chemicals and then introducing it into the machine. During the preparation of the sample there are many different areas of potential error that can be introduced, and that needs to be explored by your attorney.
The fifth area of potential defense would be with regard to the testing itself: how was it tested? What type of equipment was used for testing? Was the equipment that was used properly set up, maintained and calibrated? Did the person who operated the equipment know what they were doing? Were they properly trained and operating under the appropriate legal authority? And did they follow the appropriate rules in actually testing the sample?
Once it’s tested, then the result needs to be reported and there is a procedure or a method that is used for reporting the results—that would be the sixth area of potential defense. If the laboratory uses the inappropriate process or method for reporting the result then an inaccurate or unreliable test result can occur as well.