DUTY OF THE POLICE TO
PRESERVE THE BLOOD SAMPLE
TAKEN FROM YOU
IN A DWI or DWAI Drugs Case...
If you are arrested for either Driving While Intoxicated or Driving While Ability Impaired by Drugs and the police taken a sample of your blood....
...Then they MUST PRESERVE THE SAMPLE for independent testing by the Defense.
Criminal Procedure Law s. 240.20(1)(f) requires that if a Defendant makes a demand for discovery (evidence against him/her) then the People MUST "make available for inspection and testing, ANY PROPERTY (your blood = your property) obtained from you.. \
So, if you get your blood drawn ---then the Police have a duty to PRESERVE that sample and make it available for you (and your lawyer) for independent testing & analysis.
This is a crucial step in ANY blood case.
Case law goes on to say that: "since testimony of blood alcohol content is invariably dispositive in drunk driving cases, independent testing by a defense expert is imperative if the defense is to have a fair opportunity to confront the toxicologist and her findings..."
"It is FUNDAMENTALLY UNFAIR to deny someone reasonable access to fluid specimens taken from one's own body..."
HOWEVER BE WARNED!!!! It's not that simple.
If the police INADVERTENTLY fail to preserve the blood sample, the evidence can still be used against you at trial. If this happens, the Court is just supposed to "SANCTION THE PEOPLE" (What the heck does that even mean?).
What does "inadvertent" mean? = Oops! We lost it....our bad.
For practical purposes, it means that you're in bad shape case-wise because the prosecutor lost your blood sample, he can still use it against you, and the DA's office gets a slap on the wrist in court.
OK --that is clearly a problem---how do you avoid that outcome???
By your lawyer being meticulous and persistent. In blood cases, we make at least 5 requests for the blood sample. In every case. We make sure that the DA knows we want it, the police know we want it, and the Court knows we want it ---AS SOON AS HUMANLY POSSIBLE. We tell them at the FIRST COURT APPEARANCE. We make a formal request on the record in Court. We also send emails to the DA's office. All to create a paper and oral record of our numerous requests --so they can't drop the ball. Or if they do--it does NOT look like an accident.
By Attorney Mike Cyr
E: mike.ithacadwi@gmail.com
