When it comes to challenging blood analysis, our friends in the USA are way ahead of us. There is much less reliance on breath samples and almost no 258-style presumptions in the US, so smart DUI lawyers down south have identified many more creative arguments in blood cases than anyone we’ve found in Canada.
Like anything else, however, it’s pretty specialized. We started going to specialized, often very small, DUI conferences in the US back in 2008 and now we’re networked with a bunch of lawyers who run blood over .08 cases almost every week.
Learning from Americans
What we can report is that many US lawyers are bumbling through and aren’t very good at defending blood cases. What we can also tell you is a small exclusive group is made up of lawyers who understand this like nobody else and they succeed for their clients as a result. We like these people. They’re like us.
When it comes to taking blood cases to a new level, this exclusive group of US lawyers have been our teachers, and we’ve been good students. In the last few years we’ve lectured at large DUI conferences in the US because the exchange of information and the value to our clients goes both ways. And now we know a lot about blood analysis.
Disclosure is key
Lawyers often fail to act because they don’t know what to do. It’s a problem. We’re here to help.
In Canada the RCMP, provincial and city police have been very arrogant in our opinion in their approach to disclosure of lab and blood-testing documents.
They get away with this because few lawyers seem to know what to demand as disclosure. In some respects they’ve been insulated by prosecutors. So the typical answer to the disclosure request is that the document doesn’t exist.
Well, it probably does exist but you didn’t name it correctly when you asked for disclosure. Or they don’t have it (bonus!) because they’ve never been asked for it before and now they don’t know where it is.
Our disclosure requests in blood analysis cases may be more than what you can handle, but we’ll walk you through it. We’ve learned a lot from the Americans and we’ve been putting it to use for several years for our own clients.
Understanding the disclosure you get
Lawyers in Canada haven’t often been asking for the right stuff, and so there has been little by way of checks on the labs. And so we see sloppy work or BAC readings based on erroneous assumptions that nobody ever seemed to notice.
Continuity, procedure, malfunction, and contaminating substances are the main sources of problems with blood analysis.
Once you get the disclosure and give it to us, we come at it in a few different ways. We look to identify issues and procedural problems that the police lab techs will likely agree is substandard or problematic. We’ll bring you up to speed so you so you can talk to your Crown and if necessary cross examine each blood witness, from the confused and sometimes arrogant hospital staff to the lab tech and everyone in between.
Do you need an expert?
Blood or serum? Organic contaminate or faulty pipette? When it comes to blood analysis, if you know what you’re doing you can usually get the evidence you need from a Crown witness. If you do it right, this is the safest and least expensive way to run your client’s case.
If you need a toxicologist or an expert in gas chromatography, we can put you in touch with the right people.
Your goal is to get the readings kicked, and there are so many ways to come at that we can usually find something good in the initial disclosure. But what about testing and the actual analysis?
An improperly conducted analysis is a section 8 violation. So even if you can’t get the certificate out on 7, 9 or 10(b), you can still argue that it’s an unreasonable search and seizure.
Getting the acquittal
If you’re a lawyer with a blood case, let us help you find the evidence that the blood test result is unreliable. Due diligence means investigating the reliability of the tests. We can help you conduct that forensic investigation and understand the results.