i was taken to the hospital after a dui incident. my public defender told me that the police kit sent to the state lab went missing. will the prosecutor now use my hospital lab ? why didnt the prosecutor catch on to this and order my results from the hospital turned over is the state results are missing?>
DUI / DWI Attorney
There may be many obstacles to the prosecutor introducing any hospital blood alcohol test results. First, these results are part of your medical record and may be subject to patient privacy issues. Second, they may not be able to demonstrate a proper chain of custody. Third, they may not have been drawn with the proper equipment which may alter the results compared to a forensic blood alcohol test and not in your favor.
You should discuss all of this with your lawyer. If they are not familiar with these issues, consider hiring private counsel who specializes in DUI defense.
Best of luck to you.
No answer here should be considered to form an attorney-client relationship. You should consult with a licensed attorney in your jurisdiction so that a full evaluation of the facts of your case can be conducted.
DUI / DWI Attorney
In Georgia, Hospital blood is routinely used. In Georgia, the crime lab tests whole blood for alcohol and the statute is defined in whole blood and most medical blood only the blood serum is tested and the red blood cells are removed. The areas to attack are method of obtaining blood: did they use an alcohol swab or an alcohol free swab, how do they insure the chain of custody of the blood as blood all looks the same and can be confused or misplaced. Most medical tests will say that they are for diagnostic purposes only and are not legally admissible as the lab has not met forensic medical standards, etc. The prosecutor may not think of asking for the hospital blood test. You should also go to the hospital and ask for your records including the originals. They may say no but they are your records. Make sure to consult with your local attorney before you take any action.
No legal advice should be obtained from this response alone. This response is a matter of attorney opinion only. George C. Creal, Jr., P.C. is Georgia Professional Corporation authorized to practice law in the State of Georgia only and all information contained in this response is intended for use for DUI/DWIs occurring in the State of Georgia. Individuals with DUI/DWIs from outside the State of Georgia should contact a licensed attorney in the state of occurrence of their DUI.
Family Law Attorney
Did you ask the same question using an California and Georgia location? You should speak with a lawyer about this quickly wherever you are actually located. A DUI/OUI accident is very serious and having a lawyer will help you understand your case.
Generally, a prosecutor may subpoena the hospital records in a case of DUI/OUI. This is usually true regardless of whether or not the police took their own samples.
"Forensic" is not the issue. The issue is how the test was conducted and whether it was done in accordance to a standard that would allow for an accurate result. If tests were done at a hospital - in Illinois or Georgia - their blood alcohol results (assuming they tested for that) would be very accurate because they are most concerned about your health. The amount of alcohol in your system can have a tremendous impact on other treatments they may need to administer.
The issue is also whether your state's law allows for the introduction of hospital drawn blood. An attorney in your jurisdiction will be able to answer this. Your lawyer will also be able to tell you what they might be able to do to prevent the prosecution from using hospital drawn blood as evidence against you.
The short answer to your question is that often times, prosecutors can use blood drawn at the hospital in lieu of police drawn blood, or to substantiate any blood test results from a police drawn specimen.
You should contact a lawyer quickly or speak with the one appointed to you since the specifics of your case can determine how easy it is for prosecutors to obtain hospital blood results.
My responses here are do not create an attorney-client relationship. My response is based upon the very limited details of the submitter and should not be regarded as legal advice. I am licensed to practice law only in Massachusetts and any information given is limited legal opinions based upon Massachusetts Law.
Criminal Defense Attorney
Don't know when the arrest occurred but the Westchester Crime Lab had a severe flood about a year ago and kits were lost. The state can and will get the hospital results and use that in the prosecution of the dui.