How Can a DUI Blood Draw Be Dismissed?

Courtesy of Godoy Medical Forensics

At the DUI Defense Lawyers Association’s Mile High Summer Seminar 2016 in Denver, I presented on Medically Acceptable Blood Draws. The case law for this issue is from Cuevas and Schmerber, where the courts determined that blood draws must be performed in a medically acceptable manner. The main issues relate to risk of harm, contamination and, to some degree, hemolysis (destruction of blood cells). Some of the key points in arguing against admissibility are related to the following do’s and don’ts.

	DO	DON’T
Hygiene	The site should be cleansed once and in a radial fashion from inside to outside of the intended puncture site.	Re-cleansing with the same swab, or returning to the middle of the intended puncture site with a previously used swab, is not appropriate.
Hygiene	The cleansing swab should be used immediately upon opening.	Placing it on an unclean surface is not appropriate.
Needle System	A butterfly needle with a double-pointed system to deliver the blood directly into the vacuum-sealed tube is the desirable method.	A syringe system is more likely to cause red blood cell destruction (hemolysis) and alter the results of the test.
Tourniquet	Should be 2 inches above the intended puncture site.	Should not be left on for more than 60 seconds.
Location	Inside of the elbow is the first and most desirable place. Otherwise, the back of the hand may also be used.	Do not draw from the underside of the wrist or from lower extremities.

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