Blood Testing in a Michigan Drunk Driving Case - Will my case be dismissed if the rule aren't followed?

In Michigan, we're beginning to see more and more blood testing rather than use of the DataMaster.  If someone is arrested and refuses the a breath test, the police officer will then seek a warrant for a blood test.  This also means that a one-year license suspension will be triggered, and it's imperative to review the Implied Consent Law.  These warrants are almost always granted by judges around the state.  

You may also be taken for a blood draw if you've been involved in an accident or there is an allegation of a serious injury or death to another. Police departments will regularly admit that a blood test is more accurate, so these tests are done in the most serious cases.  If the police begin with the blood test, the Implied Consent Law will not be applicable.   

In order for the prosecutor to admit blood results into evidence at a DUI trial in Michigan, the prosecutor must produce the person who drew the blood, and this witness must confirm the following:

- the blood sample was taken in a timely manner;
- the sample was from a particular person;
- the sample was taken by an authorized licensed physician, a medical technologist, or a registered nurse designated by a licensed physician;
- sterilized instruments were used;
- the sample was properly preserved and labeled;
- proper methods of transportation were used;
- procedures used in the test sample withdrawal were proper; and
- the identity of the supervising person, under whose care the sample was withdrawn, was established.

In Michigan, a proper DUI blood test test procedure requires use of a control sample, a test sample, and two analyses of the test sample. A test sample is a sample of the substance at a known concentration, such as a known ethyl alcohol concentration in blood. A control sample contains all of the substances normally found in the matter to be tested, except for the substance of interest, ethyl alcohol. The purpose of the control sample is to demonstrate that the test instrument will not show a result based on substances common in the matter tested, thus giving a false result. For blood, the control sample is blood without alcohol.

Blood testing can be conducted with three different methods: Dichromate procedure, enzymatic procedure or gas chromatography.  Gas chromatography is the method currently used in Michigan for testing samples of blood for cases involving operating while intoxicated and operating with the presence of a controlled substance. 

Whenever blood is drawn in a DUI case, your attorney should demand the sample of the withdrawn blood along with all the associated paperwork, which provides valuable information, which could be fruitful on cross-examination.  The request for a sample must be demanded from the state police lab within 30 days of the date the state completed its test. The state police lab may discard biological specimens 180 days after reporting its results.   This second blood sample can be tested by an independent laboratory, but this should be done with caution; a second test can only strengthen the results of the first test, but could also cast doubt on the initial results. ​