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Which Weighs More Heavily In Court: A Breath Test, Or A Blood Draw?


It’s the one taken after you’ve been arrested that holds the most weight. If you’ve done both, that usually means that you do the breath test first and a blood draw later; both will be looked at.

They don’t always do the testing in the blood if they have got a breath result or it may not be available. Sometimes, they have to ask them to test that one as well. It’s usually the first one but if they are completely different and you look at time, then you may have a breath test and an hour later, a blood test and it might be 0.01, 0.02 or 0.03 lower. That’s usually not going to help the blood test that is lower later because that just shows burn-off.

However, if that blood test shows it’s much higher, that can show that you are absorbing alcohol at the time of the draw, which means you are absorbing alcohol at the time of driving, which is obviously before the breath test. It’s like an elevator. You start at the bottom and you’ve got to get to the 7th floor before you get to the 12th floor, just going one way and there can be sometimes little drops there but over a good period of time, the scientific evidence can sometimes show what a later blood draw a half hour or an hour later that you are still absorbing alcohol and it can help win a case.

Again, they are looking at the first evidential test which would typically be that breath test and then they would also look at the blood test but more often than not, that blood test is probably going to hurt you.

What Do You Typically Ask Clients When You Meet Them For A Blood Draw Case?

It depends. A lot of times clients will start telling me about the blood cases, about issues that they thought they felt where the phlebotomist or nurse did things incorrectly. Sometimes it’s bruising, sometimes they have to take blood out of somewhere other than their arm and just below the elbow. I will ask clients about the procedures, what they remember, how many vials were drawn, if they noticed any preservative in the vial, what was done with the blood after and what they saw.

We also talk about how they chose the test, what the officer asked them or advised them or admonished them before they chose the test in the communication with the officer and, especially in a refusal case, there are a lot more questions asked and then we look at the police report and we look at video and we try and get video of the blood draw if it exists if we think there are going to be issues there. We also ask people if they have any medical conditions, anything that might affect the blood draw.

Is There Anything Else that You Want to Add?

Some of the things that we should talk about is how samples are stored; that can be an issue. Sterilization can be an issue or the calibration of the instruments which are being used can also be an issue. There are a lot of issues that I didn’t go into in regards to the chromatographs which are used to test the blood and we did talk some about that but there a lot of things that we look at when we get packets; sometimes the packets that I get on the blood testing apparatuses can be fifty to a hundred pages; looking into certifications of the lab is important.

There are other things to consider. If someone is a hemophiliac, the officers are not supposed to be doing a blood draw. Blood draws are supposed to be done in a medically approved manner. Drawing blood from a hemophiliac, someone who is on anticoagulants, is something that can lead to a dismissal or an acquittal in a DUI blood case, especially if the person has let the blood drawer or the officer know about their condition.

I didn’t go into all the testing procedures but there are regulations for blood draws and we look at those to see if those were violated. We didn’t talk about sterilization of the arm, which is usually where the blood is drawn. The pad that they use to sterilize the area of the arm before the needle is inserted is not supposed to be an alcohol product.

For more information on Breath Test vs. Blood Draw, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (415) 523-7878 today.

Aaron Bortel

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