Speaker 1: In this video we will answer the question, what tactics and strategies can your lawyer use to attack the blood test DUI case? The answer to that question is coming right up. Welcome, I am Steve Gustitis and this is my channel, Gustitis Law. Here at Gustitis Law, we provide people hope by imparting knowledge to them about the criminal justice system and tactics and strategies that can be used to defend against criminal charges. If you like the content that you find on my channel, please consider subscribing to the channel. This is video number six in our series on defending the DUI prosecution. Links to the other videos in this series can be found in the description down below. But in this particular video, we will discuss tactics and strategies that your lawyer can use to challenge and discredit the blood test case. Challenging the blood test result is one of the most technical skills that a DWI defense attorney will develop over the course of their career. There is some overlap with defending breath test cases though. In a prior video, we discussed a defense called the disconnect. In the disconnect defense, your defense lawyer would use evidence of your good driving behavior or evidence of fine performance on the field sobriety tests to suggest that the breath test result just must be incorrect and that you were not over the legal limit. So how can your lawyer challenge the blood test result directly? Well, the most overlooked aspect of blood testing is the blood draw procedure. Inexperienced lawyers fail to learn some basic phlebotomy principles about drawing blood and principles used to maintain a sample's integrity, processes and procedures used to avoid contamination of the sample. In a book similar to the one I use, Phlebotomy Essentials, a defense lawyer can learn the steps that phlebotomists and nurses are trained to use in order to obtain the sample that, again, has integrity, avoids contamination and a sample that can be trusted when it gets to the actual analysis part of the blood testing procedure. In my experience, I find that nurses tend to make mistakes during the blood draw procedure. I have reviewed hundreds of videotapes showing a nurse at local hospitals taking blood from a patient. And when I compare those procedures used by the nurse at the hospital to those found in the phlebotomy textbook, I find mistakes made by the nurses on a regular basis. And there are a few very simple examples to point out in the video. One, the nurses are required to use a non-alcohol type antiseptic to prep the puncture site. Typically, that's a solution called betadine. Now, one of the very, very common mistakes that the nurses make is they fail to allow the betadine to dry. Betadine takes about 30 seconds to fully dry. And most of the time, the nurses are puncturing the vein at around 10, 15, maybe 20 seconds into the drying process. Why that's important to you is it's the drying process that actually completes the antiseptic process of the betadine solution on the skin. And there is research to show that there are microbes on the human body and in the human body that can react with glucose in your blood to ferment and create alcohol after the blood sample is taken from you. Other types of mistakes I've often seen are nurses sometimes will touch the puncture site after it has been cleaned. Sometimes they will blow on the betadine solution to try to decrease the dry time. Even something as simple as failing to wash their hands with some type of antimicrobial scrub prior to gloving can be used by your lawyer to suggest that there might be contamination in the sample. The contamination theme then can be carried on through the rest of the attack on the blood test result. Sometimes prosecutors forget to call witnesses who run the property room at the local police station. They fail to call those witnesses to prove under what environmental conditions the blood vial that contains your blood was stored in prior to its shipment or transport to the laboratory. So if nobody has called as a witness to prove that your blood sample was refrigerated during the time that it was in the property room, that idea of contamination can be carried through. Because if a sample is not refrigerated, there's a possibility that contamination can affect the integrity of the sample. It's this process of fermentation that your lawyer can be used to try to shed doubt on the blood test result. Again, remember, there is research, there have been studies published showing that there are microbes in the human body and on the skin of a human being that when combined with sugar under the right environmental conditions can ferment and create alcohol. The problem for the prosecutor in this type of situation is that the machine, the gas chromatograph used by the forensic chemist, cannot tell the difference between alcohol that you consumed and alcohol that was created by the fermentation process in the blood vial after it was drawn from your arm. Compounding the problem for the prosecutor is the testing that is done at the forensic laboratory. Rarely does the forensic lab test for the presence of preservative in the blood vial that your blood was drawn into. There's a substance called sodium fluoride and the types of tubes that are used to draw blood for these forensic testing procedures, they call them gray top tubes, they are supposed to contain a very precise amount of this sodium fluoride. The chemists at the lab never test for the presence of sodium fluoride. They presume that the sodium fluoride is there in the proper amount. Again, there are studies that show that without the proper concentration of this preservative, the contamination can lead to fermentation in the sample and corrupt the whole blood testing process. There are many more technical aspects of the blood testing procedure that can be used by your lawyer to help defend you. Some of them include traceability of standards, calibration of the machines used to test the blood, and the confidence interval that is calculated by the forensic laboratory when they issue the results. What's important to you is that you need to find a DWI defense lawyer who understands these technical aspects of blood testing. Only then can you be assured of getting the best possible defense that you can in court when challenging these results. If you enjoyed the content that you found on this video, if you found it helpful, consider giving it a thumbs up and please don't forget to subscribe to my channel, Gastitis Law. Also, feel free to share this video on your other social media platforms and don't be afraid to comment. I'll be happy to respond to those comments below and answer your questions that you might have about challenging blood test results in court. I've enjoyed this series. I look forward to our next video on defending criminal cases. I appreciate you watching. Thank you.