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Recently heard a finished trail. Honestly not involved. However, it left me wondering. It was a DUI and the defense went

Boston, MA |

was trying to make the point that protocol was not followed with regard to the blood sample. However, he never said what protocol was? Or if a hospital could take samples and make them public without the persons permission. So, what is the usually and lawful procedure. Again just curious.... not involved nor will I ever have a dui ... don't ever drink..... just peaked my interest.

Attorney Answers 3

  1. Protocol is another fancy way to say procedures. There must be certain steps followed in obtaining a blood sample and then a chain of custody established to make sure it is not tampered with. If all the steps and procedures are not followed the results may be surpressed. As to making the results public, they are given to the police and the court for the purposes of the law and are not considered public like publishing the results in a newspaper.

    213-819-1171 Please only call me if your case is in California as I am only licensed here and laws of other states may vary. I approach trials and issues from a legal and common sense approach, This is how the majority of judges I have appeared before in 40 years also make decisions. I do not intend by my advice to enter an attorney client relationship and in most cases advise to obtain legal representation. Sometimes if you can not afford it a consultation or limited scope representation is available. As an experienced attorney I can tell you, judges can be impatient, hate emotional arguments and over exagerations or lies. A brief outline of the problems and desired solutions is always best and I often in limited scope representations advise clients on how to proceed at time of hearing or trial and my fees are considerably less when I do not appear in court as it takes much less of my time.

  2. The use of blood samples is an interesting and difficult one. Generally, the samples and medical records are not available to police without a subpoena, which the defendant could attempt to quash. Further, it is my understanding that the sample must be taken with the patient's permission or at the patient (future defedant) must request it. Finally, there must be a medical reason, as opposed to a forensic reason, to take the sample, for it to be admissible over the objection of the defendant (for a possible transfusion or for diagnosis of an illness, rather than to show a lack of sobriety). There are also issues of timing, etc., etc., etc.

    The foregoing answer does not establish an attorney client relationship, is not confidential, and should not be relied upon in place of an actual consultation with an attorney. Mr. Boone is licensed to practice in Massachusetts, before the U.S. Tax Court, and the Federal District Court of Massachusetts. Most initial consultations are free. Further information is available on my profile.

  3. Your question involves multiple issues. The procedures that law enforcement must employ when securing a blood sample for criminal investigation, the medical protocol the hospital must follow when securing a blood sample for medical purposes, the legal hoops the state must jump through in order to secure the medical blood for criminal investigation and HIPAA rules about confidentiality of medical records.

    Blood test samples could be contaminated during processing in the lab or even at the point of collection. Blood alcohol content may still rise after a police stop, and your BAC during the time of driving may be lower than when the sample was collected. There is a specific procedure that must be followed when testing blood. First, the arm cannot be swabbed with isopropyl alcohol, as this can impact the BAC level.

    Secondly, blood samples can ferment if not properly stored, or be mixed with other samples if the procedures are not carefully followed. When the blood test is done, the entire sample must be tested, as opposed to just the plasma, which is often the procedure. Even a perfect test could give a false reading, as with all testing, there could be an incorrect BAC level.

    It would take us hours to go over all the permutations, understanding that each state has their own specific procedures and rules, and I am not a MA attorney, thought the concepts are similar from state to state.

    Every case and situation is different and my answers will vary greatly depending on the specific facts of each one. My answers are not to be considered complete answers to each question and do not constitute an attorney/client relationship. Always seek the advice if your own attorney. I am licensed only in the State of Florida and in federal courts. Florida Bar #337821, admitted 1982.

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