Just because the state has blood test results to use against your DUI client doesn't mean the case is over, a defense lawyer argues.

Got a client with a DUI and blood test results that seem to prove intoxication? Don't be intimidated, and don't assume the state has a slam-dunk case, assistant public defender Erica Nichols of Cook County writes in the August 2011 issue of ISBA's Traffic Laws and Courts section newsletter.

First things first, Nichols says: find out what type of blood draw and what type of blood test was performed. The Illinois Vehicle Code permits the state to draw a motorist's blood either by consent, pursuant to 625 ILCS 5/11-501.2, or on an emergency basis, pursuant to 625 ILCS 5/11-501.4. Blood draws by consent are also known as DUI kits, Nichols notes. Emergency blood draws are most common in the case of an accident with injuries.

The two types of blood draw have distinct procedures and requirements for admissibility at trial. Those requirements, Nichols says, provide the diligent defense attorney with opportunities to defeat their admissibility.

Risk of mishandling

Nichols first describes the requirements and procedures for a consent blood draw under 625 ILCS 5/11-501.2 and the associated regulations of the Illinois State Police found in the Administrative Code, 20 Ill Adm Code 1286.320. The requirements include the police officer obtaining the defendant's consent, of course, and then requesting the hospital personnel to collect the blood.

Only licensed physicians, registered nurses, trained phlebotomists, or certified paramedics may collect the sample, and a law enforcement officer must be present when the sample is drawn to authenticate it. The tubes of blood must be properly labeled and the kit sealed in front of the officer, who, along with the hospital personnel, should initial the tape that seals the box. Before analysis, a police forensic scientist will photograph the kit in its box and each of the vials.

Though the kit must meet chain of custody requirements, not every person involved must testify at trial, Nichols notes. However, if the state's witnesses do not provide sufficient testimony to identify the evidence, defense counsel may argue that the chain of custody has been compromised and the state has failed to bear its burden of showing that reasonable measures were used to protect the evidence from being altered, Nichols says.

To this end, Nichols emphasizes, be sure to inquire regarding the handling of the DUI kit. Was it kept in a cool environment? Did the officer put it in the trunk of his car? For how long?

"Blood evidence can be damaged by mishandling," Nichols observes. If there's not enough testimony to support the kit's safekeeping, defense counsel can argue that it may have been damaged and the state cannot show that its test results are reliable.

Converting serum to whole blood results

Blood tests taken on an emergency basis, under 625 ILCS 5/11-501.4, must have been taken in a hospital emergency room in the regular course of emergency medical treatment, not at the request of law enforcement authorities, in order to be admissible in DUI prosecutions under the business records exception of the hearsay rule. Therefore, Nichols advises checking the medical records for the injuries and diagnosis to determine what treatment was being rendered to your client and to ascertain whether it qualifies as necessary emergency medical treatment.

At trial, Nichols says, the state's witness, who will usually be the person who collected the blood, will have to lay the proper foundation to qualify the emergency blood test result as a business record by testifying that the test was ordered in the regular course of treatment and the sample was tested by the laboratory routinely used by the hospital. Though defense counsel may object that the failure of the lab technician who received and tested the blood to testify violates the defendant's constitutional right to confront witnesses, Nichols says the more fruitful issue for cross-examination and objections is generally the conversion of the hospital test results from serum blood test results to whole blood test results - an issue that does not arise with the consent DUI kit.

Citing ISBA member Donald Ramsell's Illinois DUI Law and Practice Guidebook, Nichols explains that the serum test result will have a higher concentration of alcohol, giving rise to the need for the state to convert the result back to a whole blood result by a divisor of 1.18. Though the state may ask the court to take judicial notice of that rate so that it does not have to present an expert forensic toxicologist to testify regarding the conversion report, Nichols advises objecting and then cross-examining that expert on such matters as what medical conditions may affect an individual's specific conversion factor.

"There is still plenty of room for argument in a DUI with blood evidence and opportunities for success," Nichols concludes. DUI practitioners will want to pay close attention to Nichols's article and her sources.