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Breath/Blood Draw Testing

Without credible breath test or blood draw results, a dui prosecution is at a serious disadvantage. However, one must never lose sight of the fact that within Indiana one can be found guilty of Operating a Motor Vehicle While Intoxicated even without breath or blood draw results. This is typically the case in circumstances where an individual accused of operating while intoxicated has been found to have refused to submit to the taking of a breath alcohol or blood test. On such occasions thorough investigation of field sobriety testing procedure and other surrounding circumstances of an arrest becomes even more important in attempting to get pending criminal charges dismissed.

Just as significant when discussing the potential importance of breath/blood draw analysis is the reality that one can be found not guilty of impairment so as to allow for Operating While Intoxicated charges to be dismissed yet still have dui penalties attach merely for testing above the legal limit of .08 BAC. This is so due to the fact that in Indiana one can be presumed to be impaired merely for testing above.08 even without demonstrated impairment. In most circumstances, unless an instance of refusal, a client’s chances of success at trial in challenging dui related penalties is often dependant upon either excluding the results of breath/ blood draw testing from trial or casting doubt upon the credibility of the results in question.

How such evidence is challenged will depend upon the type of testing conducted within a specific dui prosecution in question. With increasing frequency blood draws are being conducted within Indiana pursuant to dui related arrests. Blood draws have always been necessary in cases where impairment is suspected not due to alcohol but due to the presence of illegal drugs within the bloodstream. However, in past years where blood draws were usually taken only where the presence of alcohol is suspected in cases where an individual’s hospitalization has been required, blood draws have now been more commonly authorized where those suspected of drunk driving have refused to submit to a conventional breath test.

In such refusal cases it has become routine throughout Indiana for search warrants to be authorized compelling that blood be drawn from the suspected drunk driver. In so doing, it has been law enforcement’s intent to take away the former evidentiary advantage that a refusal could provide one intent on trial.

When challenging blood draw results it is essential to understand what are called, “chain of custody” issues that bear upon foundational requirements necessary to allow for such testing to be admissible within a court of law. Further, an analysis and investigation of maintainence, storage and handling of the blood draw evidence in question can allow for such evidence’s exclusion from trial consideration or cast significant doubt as to its credibility. Most recently, improper testing within the blood labs within Indianapolis have allowed for significant evidentiary benefits in pointing out that many former convictions based upon blood draw analysis have been invalidated due to faulty testing procedures.

To properly investigate breath testing procedure, it is vital that an attorney have complete command of the Indiana Department of Toxicolgy rules and regulations governing the proper administration of such testing. When performing such an investigation one of the first and most important inquiries must be to investigate whether the machinery providing the breath test results in question had been certified and or recertified by the department within the last one hundred eighty (180) days. Further, one must examine whether the administrator of the test was certified and/or recertified within the last two (2) years from the date of testing.

If certifications have been properly updated, evidence of breath test results become admissible within the State of Indiana. In such circumstances an attorney’s attack on such evidence must refocus from a challenge to the admissibility of the breath test result itself to a challenge to the reliability of how the alleged results were obtained. In so doing, an attorney must be familiar with every aspect of the time place and manner by which the breath test machinery was prepared and the subject analyzed in an effort to demonstrate the potential faultiness of a reading where circumstances allow.

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