In any criminal case the rules of evidence apply. In order to be found guilty the prosecutor must present admissible evidence of your guilt. Any failure to present admissible evidence could prevent the prosecution from proving an element of the crime. In many DWI or driving while ability impaired (DWAI) cases urine or blood tests are taken and need to be admitted in order for the prosecution to prove intoxication.
In order for urine (blood) test to be admitted at trial, prosecutors must present testimony from the lab technicians who preformed the tests. In People v Levy, 2008 NY Slip Op 51878(U), the prosecution presented testimony from the police officers who handled the sample before it was mailed to an out of state lab for testing, the lab employee who received the sample and placed a portion of it into test tubes, and a supervisor from the lab testified. The lab supervisor testified about the normal procedures the lab follows when it receives and tests a urine sample, and he determined, after reviewing the lab’s 300 page litigation package that tests were preformed on the defendant’s sample. The court concluded that the tests were NOT admissible, as the prosecution failed to present testimony regarding the chain of custody for the test tube samples. A witness was needed with personal knowledge about the tests preformed. The Court also refused to admit the lab’s litigation package under the business exception rule.
This summer I successfully defended a DWI blood reading of .24 in White Plains. I was able to have the blood results suppressed on a similar basis as above. In my case the prosecution failed to present evidence that a physician or someone under a physician’s supervision drew the blood. The White Plains Court also refused to admit evidence of the blood sample results under the business exception rule in that ruling that live testimony is needed. The result was a not guilty jury verdict.