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RIGHT TO AN INDEPENDENT BLOOD TEST

RIGHT TO AN INDEPENDENT BLOOD TEST

Recent Changes in the Law

Before any test of a person’s blood, urine, or breath specified in RSA 265-A:4 is given, the law enforcement officer, authorized agent, or peace officer shall inform the arrested person of his or her right to have an additional test or tests of his or her blood made by a person of his or her own choosing. At that same time the person shall also be provided contact information for individuals and the nearest facilities that make themselves available to draw and test blood. The individuals listed, by virtue of their residence or work location, should have a reasonable probability of performing the blood draw within 2 hours of the initial breath sample having been taken by the police. The failure or inability of an arrested person to obtain an additional test shall not preclude the admission of any test taken at the direction of a law enforcement officer, authorized agent, or peace officer. An arrested person who remains in custody shall be permitted to have his or her blood drawn. RSA 265-A:8, I(a); RSA 265-A:7 A:4; RSA 265-A:5, I.

Court Minimizes Effect of Time on b.a.c.

The New Hampshire Supreme Court explained that one could reasonably could reasonably conclude that a blood alcohol sample taken one hour and forty-one minutes after driving is a reasonable period of time in which an accurate sample could be obtained. In that case, the Supreme Court deferred to the trial court’s consideration of the weight to be given to the time lapse driving and the blood alcohol sample. State v. Donovan, 2013-0679.

Time Changes b.a.c.

There is a blood alcohol curve. The specifics of the curve require substantial analysis well beyond the scope of this article. The basic theory, however, is that, when a person drinks alcohol, it takes some amount of time for that alcohol to be processed from the stomach into the blood. Once alcohol enters the blood, it takes some amount of time before it leaves the blood. That processing time leads to a rising blood alcohol level followed by a falling blood alcohol level. That is the general idea of the blood alcohol curve.

The Numbers Matter

The time between drinking and testing is clearly important as different times will produce different blood alcohol numbers. If the driver has been drinking in close proximity to the time of the encounter with police, she may have had little or no alcohol in her blood when driving. However, if the blood alcohol test is much later, then her blood alcohol level may test at an illegal level. That would not be a reflection of her blood alcohol level when driving, but it would be the blood alcohol level used as evidence against her.

Choose the Best Number for Your Case

Due to the changes in the law and the growing blood testing industry, a person can obtain blood samples of their own. In that way, one could choose the time (or times) of testing within a 2 hour window after release, and consult with counsel regarding the best way to present that evidence.

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For help with these and other difficult issues related to DUI accusations, call right away for a free initial consultation with an experienced DUI defense attorney (855) 603-DUI-1. Prepare your best defense, right from the start.

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