7.6 Blood Tests

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2022 Ed.)

7.6 BLOOD TESTS

7.601 When Blood Tests Are Used.

The number of blood test cases has sharply declined since 1995, when the accused lost the right to choose between blood and breath tests. Nonetheless, the blood test remained a staple in accident cases or when the officer suspected that drugs other than alcohol were contributing to or causing the impairment observed in a driver. Now, with the United States Supreme Court generally requiring the government to obtain a warrant to administer a blood test, the number of blood test cases may continue to decline. ¹³⁵²

The procedural requirements for the taking and handling of blood are considerably more extensive than those for breath tests. Blood cases are therefore more defensible than breath cases because there are many more potential pitfalls as the blood sample is processed through the laboratory (or laboratories if the defendant requests a second sample to be tested).

The law relating to blood tests changed dramatically in 2003. One major change is that there is no longer a list of approved laboratories. In theory, the defendant can send the second sample to any laboratory anywhere as long as the facility is properly certified or accredited as required in the statute. ¹³⁵³

As with breath tests, and as discussed in the breath test section of this chapter, substantial compliance rules apply to the procedures for blood testing. Therefore, problems with the test protocol are not necessarily fatal to the Commonwealth's case. For example, in Stevens v. Commonwealth, ¹³⁵⁴ where a police officer failed to give the accused a copy of the then-required independent lab sample request form in violation of the implied consent law, the Virginia Court of Appeals refused to reverse an involuntary manslaughter conviction based on the resulting blood test. The defendant had unsuccessfully argued that he was denied the potentially exculpatory evidence that he might have obtained had he had proper access to an independent lab analysis, as provided in section 18.2-268.7 of Virginia Code.

7.602 Statutory Compliance Issues.

For a blood test to be validly performed by the state laboratory (as opposed to a hospital), the person drawing the blood must be either a physician, registered nurse, licensed practical nurse, phlebotomist, ¹³⁵⁵ graduate laboratory technician, or technician or nurse designated by order of a circuit court acting upon the recommendation of a licensed physician (for convenience, all are hereinafter referred to as "nurse"). ¹³⁵⁶

The nurse must clean the accused's arm with soap and water, polyvinylpyrrolidone iodine, pvp iodine, povidone iodine, or benzalkonium chloride, and use either a chemically clean sterile disposable syringe, a steam-sterilized syringe, or a syringe that is sterilized in some other manner that will not affect the test. ¹³⁵⁷

The nurse is directed to put the blood samples into two vials supplied by the Department of Forensic Science, seal them, and complete a prenumbered certificate of withdrawal form for each vial. ¹³⁵⁸ The forms must contain the name of the accused, the name of the person taking the blood sample, the date and time the sample was taken, and the name of the arresting or accompanying officer. ¹³⁵⁹ The nurse then places the vials with the attached certificates in a Department-supplied container, seals the container, and gives it to the arresting or accompanying officer, who must then transport or mail them to the Department. ¹³⁶⁰

When the Department receives the blood sample vials, it is required to analyze the blood for the alcohol or drug or both alcohol and drug content. ¹³⁶¹ The Department's director must execute a certificate of analysis that contains the following: (i) the name of the accused; (ii) the date, time, and identity of the person who receives and examines the blood; (iii) a statement that the seal on the vial had not been broken or otherwise tampered with; (iv) a statement that the container and vial were provided or approved by the Department; (v) a statement that the vial was one to which the completed withdrawal certificate was attached; and (vi) the sample's alcohol or drug or both alcohol and drug concentration. ¹³⁶² Most of these items are preprinted on the certificate and should not give counsel any confidence as to the veracity of these statements.

The director next removes the withdrawal certificate and either (i) attaches it to the certificate of analysis, stating on the form that the withdrawal certificate was so removed and attached or (ii) electronically scans it into the Department's Laboratory Information Management System and places the original withdrawal certificate in its case-specific file. ¹³⁶³ The certificate of analysis and the withdrawal certificate are then returned or electronically transmitted to the clerk of the court in which the charge will be heard. If the state's results get lost, the remedy is dismissal of the case, not a mere suppression of the test results. ¹³⁶⁴ The same result occurs if the independent sample is lost. ¹³⁶⁵

After completion of the analysis on the first vial, the Department holds the second vial for an independent blood test until at least 90 days have lapsed; the accused has 90 days from the date the blood was drawn, with notice to the Department, to file a motion in court for an independent laboratory test on the second vial by an accredited laboratory. ¹³⁶⁶ If such a motion is filed and the court orders the test, the Department must then transmit the second vial to the independent laboratory chosen by the accused; otherwise, the Department can destroy the second vial after 90 days unless the Commonwealth has filed a written...