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45 days passed from the time my blood was drawn to the day that the actual test was preformed, do I have a case?

Concord, CA |
Attorney answers 5


There are many factors involved with reliability of blood tests. The method of taking the blood, the storage, whether the appropriate preservatives were used, whether those preservatives had expired prior to being mixed with the blood, whether the machine testing the blood was in proper working order, whether the blood is actually your blood.

In addition, there are other defenses to a DUI charge. So when you ask..."Do I have a case?" - the answer is I don't know, there are not enough facts here to tell you.

You should hire a DUI lawyer and let that person help you.

The above information does not establish an attorney client relationship nor is it meant to provide legal advice.


It does seem unusual for the crime lab to take so long in testing the blood sample. However, if it were preserved properly and stored under the right conditions, then there shouldn't be a problem with the result. When you say do I have a case, I suspect you were charged with a violation of Vehicle Code Sections 23152(a) and 23152(b). Even if the blood alcohol were improperly stored and the sample deemed inadmissible, you still have to deal with the driving under the influence part of the case. Sometimes people refuse to give a breath or blood sample or are driving under the influence of drugs, in which case there is no blood alcohol sample. The DA can still get a conviction on the 23152(a) part, depending on the driving observed by the officer, the objective signs of intoxication and the performance on the field sobriety tests. You really need to talk to a DUI attorney as soon as possible because .17 is more than twice the legal limit. With that number, many people would show symptoms of intoxication and would have difficulty performing field sobriety tests.


If blood was stored properly it will not spoil after 45 days. There are many ways though that blood can be spoiled or a false result can occur. You need an experienced DWI attorney, like a member of the National College of DUI Defenders to assist you.
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My answers are intended only as general legal advice and are not intended to create an attorney-client relationship. There is no substitute for a full consultation with a local experienced criminal defense attorney. For more answers based on my 19 years of experience visit my website,


The delay is a significant fact that certainly opens the door to a valid argument that your blood result is falsely elevated due to fermentation. To answer your question, yes you have a case. Because there are 2 counts against you however, the remaining facts are significant as well. To fully evaluate your case an attorney would need to know the driving pattern and conduct related facts as well. But the delay is a very significant starting point and in the right circumstances can be the controlling issue.


If the blood was properly preserved it will last for a long time and your lawyer can re-test it. The blood test is very accurate but there are factors that can effect it. The problem is that it is very hard to prove that those factors were present. It can take up to three months to get blood or DNA evidence back from the labs that do the work because of the meticulous procedures that have to be followed and because the labs do nor care how long it takes. If it is a high BAC like .18% you are likely to be convicted and will not likely be able to argue that it's not accurate since only .08% is necessary in most states.

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