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Blood test excluded at 402, upheld on DDA appeal, remanded for trial. Now DDA has new witness, told blood will come in. What???

Livermore, CA |

I'm trying to limit details, but this case is really strange. My incredible PD was promoted, but kept my case. She's very busy, I'm nervous, and I'm hoping someone here can help. Arrested '09, various delays, trial set spring '12.. At 402, blood was excluded, citing 6th/Crawford: phlebotomist unknown/name not documented & ofc. had no memory draw). Judge dismissed case over objection. DDA appealed: upheld exclusion (though cited EC 403a vs. 6th), but dismissal set aside & case remanded. 1st PT,1 week after app. order final, new DDA claims to have "found" phleb (VERY suspicious) - PD warned blood may be allowed in. How? Separate hearing? Also, DDA "found" phleb before appellate ruling, is DDA/police investigation of dismissed case problematic? Any code, case, or rule that may help clarify?

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Attorney answers 3


As a former District Attorney and former City Attorney they likely tried to bring in the blood without the phlebotomist. They are usually indep contractors who move on from the job often. So, subpoening them for trial is an issue. They likely "found" her, meaning they put forth more effort in locating her than the normal assembly line sub system. The age of the case helps you.
Good luck with your case.


Assuming that the prosecution cannot lay a proper foundation for the admission of the blood test results, the officer can still testify about his observations - your driving at the time of the stop, the field sobriety tests, the objective symptoms of alcohol consumption, and other factors such that a jury could convict on "under the influence" section [VC 23152(a)), as opposed to the ".08 or over" section [VC 23152(b)] on which you could not be convicted without proof of blood alcohol.. My guess is that the appellate court found error, among other things, in dismissing that "(a)" count (unless there was insufficient evidence to support a conviction on that count as well). Of course, depending on the facts of your case, you have a much better chance of an acquittal if the prosecution cannot present evidence of what your blood alcohol level was at the time.


Your best bet is to try to have a detailed conversation with your public defender. Failing that, you should seriously consider consulting with a few private dui attorneys in a confidential environment, which this site is not. Good luck.

Jasen Nielsen

Harry Edward Hudson Jr

Harry Edward Hudson Jr


There are some relatively new appellate decisions in Califoria interpresting the what the DA can and cannot produce through third party's testiminy when it comes to forensic issues. Here you indicate that the exclusion decision of the trial court was upheld. What is apparently happening is DA has found the phlebotomist. You can have another 402 hearing. See no reaso you should dump your otherwie amazing PD.

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