EVIDENCE;

DRUNK DRIVING;

You asked about the legal requirements for blood tests relating to drunk driving.

SUMMARY

A person commits the crime of driving under the influence (DUI) if he operates a motor vehicle (1) while under the influence of liquor, a drug, or both or (2) with a blood alcohol content (BAC) of . 08% or more.

In a DUI prosecution, a chemical analysis of the defendant’s blood, breath, or urine showing the amount of alcohol or drug in his blood or urine at the time of the alleged offense is admissible if six conditions are met, including giving the defendant a reasonable opportunity to call an attorney, checking the testing device’s accuracy, and conducting a second test. The statutes create a rebuttable presumption that the test results show the ratio of alcohol in the person’s blood at the time of the alleged offense. But the prosecution must present evidence of the test’s accuracy when the additional test (1) shows that the BAC ratio is . 12% or less and (2) it is higher than the first test’s result.

In a prosecution based on driving under the influence, as opposed to driving with BAC of at least . 08%, reliable evidence of the amount of alcohol in the defendant’s blood or urine at the time of the alleged offense from a chemical test of blood, breath, or urine is admissible only at the defendant’s request.

Evidence of the amount of alcohol or drug in a driver’s blood or urine from a sample taken for diagnosis or treatment at the scene of an accident when the driver suffers or allegedly suffers physical injury, or on the way to the hospital or at the hospital, is also competent evidence for probable cause for an arrest warrant for DUI and is admissible in the prosecution if certain conditions are met.

The statutes require the Department of Public Safety (DPS) commissioner to determine the reliability of methods and devices for chemical testing and analyzing blood, breath, or urine. He must adopt regulations for conducting tests, operating and using devices, training and certifying operators, and drawing samples in order to protect the health and safety of those submitting to the tests and to insure reasonable accuracy of results. The statutes specify that a police officer that ends his employment with a law enforcement agency to work with another does not have to be recertified.

CONDITIONS FOR ADMISSIBILITY IN CRIMINAL DUI CASE

In a criminal prosecution for DUI, a chemical analysis of the defendant’s blood, breath, or urine showing the amount of alcohol or drug in his blood or urine at the time of the alleged offense is admissible if:

1. the defendant had a reasonable opportunity to telephone an attorney before the test and he consented to the test;

2. a copy of the test results was mailed or personally delivered to the defendant within 24 hours or by the end of the next business day after the results were known, whichever was later;

3. the test was performed by a police officer or at his direction according to methods and equipment approved by the DPS and performed as required by regulations;

4. the device used for the test was checked for accuracy in accordance with the regulations;

5. (a) an additional chemical test of the same type was conducted at least 30 minutes after the first test or (b) if requested by a police officer for reasonable cause, a different type of test was conducted to detect a drug other than or in addition to alcohol (an initial test is still admissible when the second test (1) was not performed after reasonable efforts were made or it was not performed in a reasonable time or (2) did not meet all the admissibility requirements); and

6. evidence shows the test began within two hours of operation (CGS § 14-227a(b)).

Evidence that the person refused a test is admissible if the other requirements are met and the court in a jury trial must instruct the jury on any inference it can draw from a refusal (CGS § 14-227a(e)).

Tests From Treatment or Diagnosis After Injury

When a driver involved in an accident suffers or allegedly suffers physical injury, evidence of the amount of alcohol or drug in his blood or urine from a blood or urine sample taken at the scene of the accident, on the way to the hospital, or at the hospital is competent evidence for probable cause for an arrest warrant for DUI and is admissible in the prosecution if:

1. the sample was taken for diagnosis and treatment purposes;

2. when a blood sample is involved, the sample was taken according to the testing regulations;

3. a Superior Court judge is satisfied that the police officer had reason to believe the person operated while under the influence and the test provides evidence of the offense; and

4. the judge issues a search warrant to seize the analysis.

The court can also issue a warrant to seize hospital medical records in connection with the driver’s diagnosis and treatment (CGS § 14-227a(j)).

DPS REGULATIONS

Under the regulations, the DPS commissioner must:

1. approve testing methods and laboratory analysts before a laboratory can perform chemical tests (certain requirements apply to approving methods and the commissioner must consider certain issues),

2. inspect devices and instruments to determine whether they provide accurate results before they can be used for analyses,

3. approve breath test methods and equipment based on a laboratory evaluation of the instrument and its accessories (the regulations specify standards of performance),

4. examine and certify each instrument before it is used and after any repairs that affect or alter its calibration (Conn. Regs. § 14-227a-1 et seq. ).

Only certified analysts or operators can use devices and they must check the device or instrument for accuracy immediately before and after each test. For breath tests, the operator must be certified and employed by a law enforcement agency. The regulations require training, proficiency, and review. Instructors also must be certified. Blood can only be drawn by someone licensed to practice medicine and surgery in Connecticut, phlebotomists, qualified laboratory technicians, certain emergency medical technicians, registered nurses, or other occupational classes determined by the commissioner as competent to safely draw blood.

For blood and urine samples, analysts must use containers and equipment that preserve sample integrity before testing and then seal and label them after testing. They can only conduct a test if the sample is properly sealed. All alcohol analyses must be done in duplicate and the results are reported only if they correspond to +/- . 01%. Analysts must use any standards and controls that the commissioner requires in the approval of the analysis method. Analysts must use duplicate samples. For a urine test, a police officer of the same gender must monitor the sample collection to ensure it is not adulterated or misidentified.

For blood tests, the person must (1) collect the sample with a sterile syringe and hypodermic needle or other sterile equipment and (2) clean and disinfect the skin at the puncture area thoroughly, but not with ethyl alcohol.

For breath tests, the operator must use the methods and equipment approved the commissioner. The regulations set rules for collecting samples and operating devices. They also require a logbook for each device that notes the operators, accuracy checks, and analysis and calibration results. Manufacturers and buyers must report all sales and purchases of devices used for evidence related to DUI.

The person undergoing a test or his attorney has access to the results before a scheduled hearing (Conn. Reg. § 14-227b-4 et seq. ).

Type of Test Used

Under the regulations, a police officer requests that a person submit to either a blood, breath, or urine test, but if the person refuses or cannot submit to a blood test the officer must choose a breath or urine test. A person is deemed to have refused a test if he:

1. refuses a second test after a first test of the same type,

2. refuses a blood test and then another type of test,

3. remains silent or does not communicate his assent to a request under circumstances where a response could be reasonably expected, or

4. claims he cannot undergo a test because a physical condition makes it inadvisable and then does not request a hearing to submit sufficient competent medical evidence to support his claim (Conn. Reg. § 14-227b-4 et seq. ).

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