Can a post-accident drug screen with a company vehicle be used against the donor to create a DUI case?

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Can a post-accident drug screen with a company vehicle be used against the donor to create a DUI case?

Asked on January 31, 2014 under Criminal Law, Florida

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

While the police always have the right to require you to take a blood test instead of a chemical test, a blood test most typically comes into play when you are injured in an accident. Because the level of alcohol in your system can affect the medications the emergency room administers to you, the doctor often orders blood tests.

The sample a hospital uses in such circumstances typically is based upon blood serum or plasma, both of which contain more water than whole blood contains. The law requires that the blood serum or plasma reading be reduced to whole blood equivalents. This will result in a lower reading for legal purposes than what is shown in the hospital records.

The police are entitled to subpoena these records in order to assist them in proving a DUI charge. However, the blood tests that are taken at the request of the emergency room physician in the course of treating you are not admissible for purposes of determining whether or not your license will be suspended due to registering over the .08 legal limit.

It is likely that the police will be present at the hospital while you are being treated. The hospital personnel will, upon request, advise the police of the results of any blood tests during examination. These results, if they indicate that you are over the legal limit, will form a basis for the police to ask you to submit to a second blood draw that the police will analyze in their own lab. The test results from the police lab most likely will be based upon the legally proper whole blood specimen.

It is the results from this second blood draw that will determine if you will be suspended and for how long. Just as is the case with the chemical test, if you register over the limit, the Secretary of State will enter a suspension.

If you refuse to consent to blood testing that the police request, you will be considered, for purposes of the suspension, as having refused testing. The fact the hospital drew blood during your examination at the emergency room does not overcome your refusal to submit or consent to any further blood testing by the police.

In circumstances in which you are involved in an accident and someone else suffers bodily injury, the police can essentially force you to provide a blood sample. In addition, if you are unconscious, you are assumed to have given your consent to a blood draw.

Blood draws are more reliable than chemical tests. Whereas chemical tests rely upon converting your breath into an approximation of the amount of alcohol in your bloodstream, the blood test is a direct reading of the alcohol in your bloodstream.

However, there are certain procedures that the police are required to follow in drawing the blood and preserving the sample that may work in your favor. Something known as the absorption curve may also be relevant to defending a DUI.

Answer: A post accident drug screen test of a person can be used to build a DUI case against him or her.


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