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Many DUI cases involves breath tests. Depending on the jurisdiction you live in the particular machine may be different, the particular procedures may be different, and how the breath sample is tested may be different. But there is one thing common in every DUI breath test case regardless of the jurisdiction. The Defense cannot have that breath sample retested months later to verify whether it was correct.

However in a DUI blood draw case. Where a defendant was arrested and a sample of their blood was taken and tested at a laboratory, that same blood sample can be retested by the Defense. In my opinion this is an incredibly important tool of investigation at the Defense Attorneys fingers, and when it can be accomplished the blood sample should be retested for a variety of reasons.

First, think about that how many times has a client said they only had two drinks three hour prior to driving, and their breath test show a.15 alcohol level. Sometimes the numbers just don't match up, and other than assuming the client is lying there can be no other explanation except the number was wrong. But fortunately this doesn't have to be the case in a blood draw DUI. The Prosecutors blood test results can be challenged by your own expert to see whether the actual blood alcohol level was the same. If it was then no harm no foul. But if it wasn't then you have an entire plethora of arguments you can make.

Secondly, in most DUI blood draw cases the blood sample is only tested for alcohol, or drugs. Usually not both. In some cases to offer an alternative explanation of the defendants impairment, it might be a good idea to get the blood retested to see if there what else was in the defendants system. Perhaps an involuntary intoxication claim will be made at trial, and having the sample tested for other substances other than alcohol may accomplish this.

Lastly, it can be used for tactical reasons when negotiating with the Prosecutor or creating legal issues. Lets say you sent in a request to preserve the blood sample. But the laboratory did not do it, and now evidence has been lost. Well had you never intended to have the blood retested, then this evidence wouldn't be lost and governmental misconduct wouldn't apply. So sometimes just going through the motions of doing something will in and of itself create a legal issue that can be taken advantage of.

Matthew Leyba is the founder of Leyba Defense PLLC, a Seattle DUI Law Firm located in Seattle, WA. His practice is devoted to defending those accused of DUI's and is widely considered a top Seattle DUI Lawyer.

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