Retention of Biological Samples: In a DUI case, how long is long enough?

Suppose the following:

  • You are driving home.
  • You get stopped by the police.
  • You are arrested for DUI.
  • You are requested and give a sample of your blood.
  • The blood goes to a laboratory and is analyzed.
  • The results get transmitted to the police a few days later.
  • The  police type it up a few says later.
  • Now 8 days since the testing goes by before the judge signs the summons.
  • You get the notice of the charges 11 days after the testing is done.
  • You are charged with a per se DUI violation where the only elements of the crime that the government has to prove (1) you were driving (or where in actual physical control) a vehicle, and (2) that the amount of EtOH was above a prohibited level. So, quite literally the number is the crime.
  • You see there is a number for the EtOH in the form of the BAC. This means you get a number from someone’s analysis at some laboratory that just does not make sense. It is way too high.

Perhaps you think to yourself, “That can’t be my sample” or “They messed that thing up.” You think to yourself that you want it retested because you know it is wrong.

However, the laboratory has a internally published procedure that states that all blood evidence is destroyed after 7 days of the analysis.

Is this fair?

Is this right?

Is this legal?

How important is chain of custody?

The Technical Working Group on Biological Evidence Preservation in its publication entitled “The Biological Evidence Preservation Handbook: Best Practices for Evidence Handlers” which is a consensus document published by The Department of Commerce-National Institutes of Standards and Technology in cooperation with National Institute of Justice, the Office of Law Enforcement Standards and a committee of 22 scientists, prosecutors, evidence technicians and police. They wrote:

When possible, every effort should be made to notify all relevant parties during the disposition process. Almost all states that have evidence retention statutes also have mechanisms that authorize destruction prior to the regularly scheduled timeframe… These provisions bring all parties’ attention to the existence of the evidence and the question of the continued need to retain the evidence. These laws usually require that the holding agency provide advance notice to the court and all relevant parties (i.e., the prosecutor, the defense attorney, and the defendant) and afford an opportunity for the parties to request continued retention of the evidence or to consent to the early disposition of the evidence.

The justice system requires that proceedings be conducted fairly. A compromised chain of custody can lead to an incorrect verdict. The chain-of-custody record documents the chronological movement, location, and custodial status of physical evidence from the time it is collected through the final disposition. Each person involved with evidence collection, storage, and handling must be able to attest to the condition of an evidence package (e.g., sealed/not sealed or damaged), any changes made to the contents of that package, and the condition of all transfers. Every transfer of evidence between individuals and storage locations must be documented. A break in the chain of custody can be grounds for challenging the admissibility of evidence.

Never not once in the thousands of DUI cases that my office has handled has anyone notified the defense of the potential destruction of blood evidence. Not once. This is wrong.

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