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Blood Sample Challenges



Winning on the technicalities: Potentially winning a BUI based upon mistakes in the required procedure for blood and breath samples.


NRS 488.450 is Nevada’s Implied Consent Statute as to boat or vessel operators:

1. Any person who operates or is in actual physical control of a vessel under power or sail on the waters of this State shall be deemed to have given consent to a preliminary test of his or her breath to determine the concentration of alcohol in his or her breath when the test is administered at the direction of a peace officer after a vessel accident or collision or where an officer stops a vessel, if the officer has reasonable grounds to believe that the person to be tested was:

(a) Operating or in actual physical control of a vessel under power or sail while under the influence of intoxicating liquor or a controlled substance; or

(b) Engaging in any other conduct prohibited by NRS 488.410, 488.420 or 488.425.

2. If the person fails to submit to the test, the officer shall arrest the person and take him or her to a convenient place for the administration of a reasonably available evidentiary test under NRS 488.460.

3. The result of the preliminary test must not be used in any criminal action, except to show there were reasonable grounds to make an arrest.



That situation is addressed within NRS 488.460  (7) (b) : The police can use REASONABLE FORCE to the extent necessary.


“The officer may direct that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested. Not more than three such samples may be taken during the 5-hour period immediately following the time of the initial arrest. In such a circumstance, the officer is not required to provide the person with a choice of tests for determining the alcoholic content or presence of a controlled substance or another prohibited substance in the person’s blood.”




Mistakes can be made right away when the blood is drawn –


The results of the test can be challenged in court if the phlebotomist, officer or EMT technician was not properly certified or did not follow standard procedure during the blood draw. Additionally, broken blood testing equipment, improperly maintained equipment or otherwise faulty equipment can contaminate – and thus invalidate a blood sample. During collection of blood samples at a hospital by medical staff, procedural issues often arise. Hospital staff do not have set guidelines to follow to preserve the evidence, resulting in problems with the labeling and handling of the sample. Additionally, the techniques used to obtain and analyze the sample differ in a medical setting. Failure to comply with preservation and collection procedures will negatively affect the admissibility of the sample or even result in dismissal of the case.


-The nurse may have mislabeled the sample, put someone else’s name on the vial.

-The nurse may have failed to properly seal the vial and not put her initials and date on the seal.


The police can make mistakes after getting the blood  –


Sample Storage: Many times the sample is not stored properly leading to inaccurate results (inadequate levels of anticoagulants and preservatives in the vial can also cause problems).


Nevada has laboratory procedures that set forth rules and requirements for preserving the blood sample before, during, and after the laboratory testing. Improperly maintained samples could result in an erroneously elevated BAC reading. Failure to strictly adhere to these rules could result in suppression of the evidence or even dismissal of the case.


Each time the sample comes into contact with a new person or place, there is a new link in the chain of custody. Documentation and reporting are crucial to this process. A lab technician must analyze each sample, and an expert must testify before the results may be admissible in court.  If there was a break in the chain of custody, from phlebotomist to crime lab, then it can be argued that someone may have switched the samples or contaminated it.


The burden is on the prosecution to establish the requisite foundation for the evidence. This will typically include that proper procedures were in place.

Contamination: The blood test can be suppressed in court if the sample is proven to have been contaminated. Fermentation of alcohol can occur in improperly stored samples which can yield inflated results. The testing site must be clean and free from dirt and bacteria. During blood draws taken in hospitals, nurses and medical staff typically clean the area with an alcohol swab. When collecting blood from a DUI suspect, the use of a non-alcohol swab is vital to prevent invalid results. Some states will dismiss a DUI conviction for use of alcohol swabs during collection. Iodine may cause interference with BAC results. Tell your attorney if alcohol or iodine was present during swabbing at your blood draw process.


Each state has rules and requirements for collecting blood samples in a DUI case. This includes procedures for drawing, sealing, labeling, and delivering the samples to the laboratory. Failure to strictly comply with these rules will result in a Judge ruling the blood test result inadmissible in court.

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