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Defenses Against Failed Blood Test in Michigan

Question: What are some potential defenses for a “failed” blood test in a Michigan DUI/OWI case?

Answer: Well, if a blood test is taken, we want to make sure that the procedure was followed correctly. One of the things obviously to look for is whether an alcohol swab was used. Blood tests are most often done at the Michigan State Police crime lab, so the blood gets sent there. So there's a chain of custody question as to how it got from the client's arm into the lab where it's being tested. So that's an issue to look over every time too. And the blood that's not tested at the Michigan State Police lab, if it's done at a hospital, the procedure that's followed, it's important to know the procedure—are they doing a whole blood test, or a serum test, because that can have a big impact on what that number, the blood alcohol level coming back from the test says that the blood is.

So there have been issues with some very, very high blood alcohol levels, but there's a big question as to whether that's an accurate test. The other thing that we do in blood cases is request the complete blood work on the tests that were done that day. So we're not just looking at our client's two tests, we're also looking at other samples and controls that were done that day to see if there are other issues with any of the other tests. And sometimes that can be helpful. I had a client with a test that was very far off, the two tests, and the result that was given to us was just the higher of the two, not an average, and certainly not the lower of the two tests. And we were able to use that successfully to have the prosecutor reduce that to a littering charge. So it can have a big impact on a case.

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