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In Washington State the implied consent law requires an individual to consent when blood is requested. However, there are instances where the implied consent law does not require consent for a blood draw and does not permit the suspect to refuse. Such instances include when the suspect is unconscious, is under arrest for vehicular homicide/assault, is under arrest for DUI that resulted in accident causing another person serious bodily injury, or is under arrest for felony DUI. RCW 46.20.308(3).
RCW 46.20.308 (4) states the following, as it relates to obtaining blood without the consent of the individual:
For information about your Washington State DUI Blood Draw case call lawyer David N. Jolly for a complimentary consultation.
A very important case confirms the need for law enforcement to obatin a warrant before proceeding with nonconsensual blood draws. In Missouri v. McNeely, 569 U.S. ___ (2013) the Supreme Court affirmed the Missouri Supreme Court, agreeing that an involuntary blood draw is a "search" as that term is used in the Fourth Amendment. As such, a warrant is generally required.
Nothing in subsection (1), (2), or (3) of this section precludes a law enforcement officer from obtaining a person's blood to test for alcohol, marijuana, or any drug, pursuant to a search warrant, a valid waiver of the warrant requirement, when exigent circumstances exist, or under any other authority of law. Any blood drawn for the purpose of determining the person's alcohol, marijuana levels, or any drug, is drawn pursuant to this section when the officer has reasonable grounds to believe that the person is in physical control or driving a vehicle under the influence or in violation of RCW 46.61.503.
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Washington State requires that no person than a physician, registered nurse or a phlebotomist qualified by Washington State can draw the blood for purposes of determining the alcohol concentration.
Such guidelines and procedures must be used to collect the blood sample, otherwise the blood analysis will be flawed. For example, the American Medical Association suggests the following procedures:
1. Hypodermic needles and syringes (must) be sterile and disposable. When reusable equipment is utilized, it should neither be cleaned with nor stored in alcohol or other volatile solvents.
2. Only a chemically cleaned, dry tube or vial with inert stopper should be used. Neither alcohol nor volatile solvents should be used to clean them. The tubes and vials should contain an anticoagulant (recommended are fluoride, citrate, oxalate and heparin), and a preservative (recommended are fluoride and mercury salt.) See American Medical Association, Alcohol and the Impaired Driver: A Manual of the Medical-Legal Aspects of Chemical Tests for Intoxication with Supplement on Breath/Alcohol Tests (1976 reprint).
The anticoagulant in the vial is designed to prevent the sample from clotting inside the vial. The preservative prevents yeast growth, which may cause the blood to ferment, thereby increasing the concentration of ethyl alcohol in the sample. Finally, the sample should be refrigerated during storage with 1% sodium fluoride. Lesser concentrations may allow microorganisms to grow, thereby inhibiting glycolysis. See Kaye, “The Collection and Handling of Blood Alcohol Specimen,” 75 American Journal of Clinical Pathology 743 (1980).
Areas of concern or inquiry as to the validity of the blood sample include:
•The collection of the blood sample by the nurse, doctor or phlebotomist;
•Use of an appropriate blood collection kit;
•The transportation of the blood;
•The storage of the blood;
•The preparation of the blood for testing;
•The testing of the blood;
•The chain of command in handling the blood;
•The reporting of the blood alcohol level.
A blood draw in lieu of a breath test is an option available in Washington State and importantly Snohomish County, Skagit County, and Island County and Whatcom County DUI cases. Blood draws, when performed properly, are generally more accurate. However, even if the blood draw is an “option,” it may not be your option!
In Washington, and importantly Snohomish County, Skagit County, Island County DUI cases a blood draw is an alternative to a breath test if you are under arrest for vehicle homicide, vehicular assault, if you are unconscious (and were arrested for DUI, physical control, or minor under the influence), or a DUI arrest resulting from an accident with serious bodily injury. Another way that a blood draw may be administered is if you are physically unable to provide a breath sample (ie. asthma, emphysema). When it comes to drug DUI cases, the blood draw is common place and consistently used.
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