Can a hospital blood test by used against you after an accident in a DUI? Yes, read Daniel v. State, A09A0226, June 8th, 2009.  In Daniel, a woman was driving herself, her child and another child to the store.  She claims the tire blew out.  Police noted the tires were in bad condition.  She was injured and taken to the hospital.  The other child in the car was killed from blunt trauma for apparently not wearing a selt belt.  The suspected DUI driver admitted to drinking two beers. The tragedy was two fold in this case as not only was someone killed but now you have to refuse medical treatment not to incriminate yourself. 

Upon arrival at the hospital, the alleged DUI driver had her blood taken for medical purposes.  The medical blood test showed a .223 blood alcohol.  Police arrived at the hospital and also obtained a State Administered Blood Test under Georgia's Implied Consent law.  The state administered blood test performed at the state crime lab indicated a blood alcohol of .157 a difference of .066 from the medical blood test performed by the hospital lab.  This rather large discrepancy was not mentioned by the court.  It probably stems from the fact that medical blood alcohol is generally measured from blood serum only and not whole blood which is generally the method used at crime labs and is commonly referred to as "legal blood."  Further, O.C.G.A. Sect. 40-1-1 defines, “Alcohol concentration” as "grams of alcohol per 100 milliliters of blood", not serum or plasma.  In B.T. Hodgson and N.K. Shajani. Distribution of ethanol: plasma to whole blood ratios. Can. Soc. Forensic Sci. J. 18: 73–77 (1985), the study found that plasma and serum samples had significantly higher concentrations of ethanol than the same whole blood samples.  Who says the error is harmless?  The Georgia Court of Appeals allowed the medical blood test obtained from the DUI suspects medical records apparently by search warrant as a business records exception to the hearsay rule by the testimony of the medical records custodian from the hospital and the head of the hospital lab who testified that it is routine procedure to test everyone who comes in the ER for blood alcohol.   The Officer who obtained the blood sample for the state administered test passed away before the case came to trial but the Court of Appeals found that the deceased officer's telephone conversation to the Officer who testified that he smelled alcohol on the driver was sufficient to support probable cause for DUI sufficient to warrant a blood test.  So much for the right to confront witnesses.  The Court did leave one door open on the medical blood test indicating that a challenged to the chain of custody of the hospital blood test was not made.  DUI Defense is a very technical legal subject.  It exists where medical science and the law intersect.  That is why it is important to hire an experienced and qualified Georgia  DUI Defense Lawyer.

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