Accepted Medical Practices

The Fourth Amendment requires that blood draws in DUI cases be performed in accordance with accepted medical practices. Schmerber v. California (1966) 384 U.S. 757. But many forensic blood draws occur in unsanitary areas, and by means that do not comply with medical requirements for venipuncture. A blood draw may have been captured by video surveillance, and preserved for a defense attorney to later view. This is critical as the video will show exactly what the blood drawer did, or did not do, during the procedure. Obtaining and providing the blood draw video to an expert in the medical field of venipuncture will help discern whether the procedure should be challenged before trial by way of a suppression motion. For example, the constitutionality of a blood draw may be challenged where the phlebotomist did not wash their hands or wear gloves prior to the procedure, did not clean the venipuncture site properly, or did not provide proper arm support during the blood draw. The applicable question is whether the blood draw procedure unjustifiably put the client at risk of infection or pain. This is prohibited under the Fourth Amendment. If a court finds that a forensic blood draw was not performed in accordance with accepted medical practices, the blood evidence, including the blood test results, should be suppressed. This means that the prosecution is precluded from using that evidence against the defendant in court. If the trial court denies the suppression motion, that ruling may be appealed if the defendant is ultimately convicted either after trial or upon guilty plea.

About the Author

Lara J. Gressley

Lara Gressley

Lara Gressley has been an attorney for over two decades. She focuses her practice on criminal defense, DUI defense, and writs and appeals in state and federal court, and has worked on cases before the United States Supreme Court. Lara also lectures lawyers across California on various criminal defense topics.

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