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Blood Test

The blood test is more reliable than the breath test. However, it is less often used in Kansas due to the expense involved and the impracticality of taking every arrestee to the hospital. By law, evidential blood tests must be drawn by a doctor, nurse or qualified medical technician. Another problem with the blood test is that it can be hard for the prosecutor to get the results into evidence.

A blood test is most often used when a person is suspected of being under the influence of something other than alcohol or when there has been an accident. If the driver was injured in an accident, blood will almost always be taken upon arrival at the hospital. In the case where blood is drawn for medical purposes (i.e., to type the blood or determine whether there is anything in the blood that would react adversely to medication) as opposed to legal purposes, the police may obtain the results by a search warrant served on the hospital records. In Kansas, there is no doctor-patient privilege protecting such a test in a DUI case. There is, however, a federal law that prohibits hospitals from disclosing confidential information about patients treated in the hospital for drug or alcohol related issues. Thus, when blood is drawn without a request from law enforcement, it is extremely important to contact the hospital’s attorneys immediately with notice of the federal confidentiality law and to assert the patient’s right to confidentiality. When blood is drawn for legal purposes, at the request of the police, the driver must get the Implied Consent notice. A blood test may also be obtained in a DUI case pursuant to a search warrant issued by a judge. This can happen when a person has refused a test and there is probable cause to believe that the person was DUI. In Douglas County, Kansas, search warrants for blood tests are common when a driver is arrested for DUI and refuses a test.

Blood tests in Kansas are usually sent to the KBI in Topeka for testing. It generally takes two or three months for the results of the blood test to be returned. It is important to obtain all the records maintained by the KBI, including

  • the calibration of the testing machines,
  • the records concerning the other samples tested at the same time,
  • the chromatograms underlying the results,
  • the chain of custody for the sample, and

all the protocols for the calibration of testing machines and the storage, handling,  and testing of samples. This can end up being about 100 pages of documents.

There are many other issues with regard to blood tests, like: was the person’s arm swabbed with alcohol prior to the test? Was anticoagulant mixed with the sample? Was a preservative used? Did the test measure whole blood or just the plasma? Blood tests always warrant serious and immediate action and investigation. Often this includes interviewing any and all doctors and nurses that had contact with the subject of the blood test.

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