If your blood tests for a dui came back over the limit, are the police required to provide you with the sample so you can have it retested? The toxicology report says the sample would be destroyed after 90 days and it has been well over the 90 days since it was tested. Would the tests results get thrown out if the blood sample was destroyed before the discovery process?
Most agencies hold onto blood for six months before destroying the blood for retesting purposes. if the State is going to bring the blood to court to prove it up they are going to have to bring the officer, nurse and blood tech that analyzed the evidence.
Also the blood tube will be there. To there should be some blood for retesting.
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DUI / DWI Attorney
You need to make a request to preserve the sample for independent testing before it is destroyed. If there is no request made, then there is no inference that the destruction was done in bad faith. It will simply be done in the ordinary course of lab procedures. You will not be able to argue for a jury instruction that the state intentionally destroyed the sample.
The prosecutor will send out a discovery letter advising defense counsel of the procedure for ordering the blood sample for testing. If it is destroyed before you are allowed to test it, you could bring a motion to suppress. Then it is up to the court and the case law. Good Luck!