Blood Testing

The choice of whether a breath test or a blood test will be requested is made by the arresting officer. This officer must advise you regarding the Implied Consent law and the consequences of either refusing or “testing” at or above the per se limit at the time of arrest or as soon thereafter as practical.

He generally may not wait until you arrive at the police station. In order for the police to be legally authorized to request a test pursuant to the implied consent statute, the arresting officer must make a valid arrest unless you were a driver involved in an accident resulting in serious injury or death. In either event, there must be probable cause to believe you were driving under the influence to request the test. Your rights under the implied consent law include the right to request an additional independent test of the driver’s choice at the driver’s expense if the driver submits to the state administered test and the right to refuse a chemical test. However, the law was amended in 2006 - in response to one of Allen Trapp’s victories in the Supreme Court the preceding year – to allow the police to obtain a search warrant if a person refuses chemical testing.

If the driver is unconscious and unable to give consent to a chemical test, the driver is deemed to have not revoked the consent. In plain English, the police can have medical personnel draw blood without the driver being aware of it. If a blood test is obtained, the officer will use a blood kit provided by the Georgia Bureau of Investigation. This standard blood withdrawal kit is completely self-contained. The kit is provided by the police to the medical personnel drawing the blood samples. Contained in the kit are two vacutainers (vials with a vacuum) that contain an anticoagulant and a preservative.

The officer will ask a nurse, emergency medical technician, paramedic, phlebotomist or other approved medical personnel to draw the blood samples in the officer’s presence. The person drawing the blood will use both vials to obtain two separate blood samples. After the blood samples are taken, it is required that the vials be inverted eight to ten times so the blood samples will be thoroughly mixed with the preservative and the anticoagulant.

One of the laboratories operated by the Division of Forensic Sciences will perform the tests on the blood. Blood samples are tested on a gas chromatograph. These machines are expensive, and the test sequence to determine the blood alcohol level is time consuming. Due to the expense and time of using these machines, hospitals do not use the gas chromatography method to analyze blood samples for alcohol. The hospital’s concern when taking a blood sample to analyze for alcohol or drugs is to determine if these substances are in the patient’s system. The hospitals want to know this information before administering any drugs that may react adversely with possible intoxicants already in the patient’s blood.

The analytical methods used by the hospitals routinely result in alcohol levels an average of 18 % higher than the more accurate reading given by the gas chromatography method. There is also a much higher possibility of contamination because steps to prevent possible contamination are not used. With these increased risks of false reporting, it is not surprising that these blood alcohol reports do not meet the basic scientific requirements required to be admissible in court in many states. In Georgia, however, all bets are off.

A blood test result over the legal limit, even a high result, is not the final nail in the coffin. Skilled attorneys can successfully challenge the test when they understand how gas chromatography works, have visited forensic labs, have researched, and understand the standard operating procedure and legal requirements for withdrawing and analyzing blood samples. If the challenge is successful, the blood test result may not be admitted and the jury will never know a blood sample was withdrawn. A suppression of the blood test can result from many different challenges, including but not limited to, issues with chain of custody, expired blood kits, expired certifications, and faulty equipment or maintenance. However, even when there are problems with a test, most judges will say the issue “goes to weight, not admissibility” and let a jury sort it all out.