I have a case about to go to trial where there was a one vehicle accident. Def is taken to the hospital and they took blood immediately, per procedure. That blood result for alcohol was a .09.

Unfortunately, my officer did not get blood until a couple of hours later, and the result of that test is a .05.

Can I admit both tests?

You can attempt to put on whatever evidence you believe is relevant. My argument would be that while the second test is farther removed from the time of driving, contrasting it with the earlier test shows the fact that the defendant was eliminating alcohol already.

Besides, two tests indicating the presence of alcohol just strengthens your case. Even if the exact BAC at the time of driving can't be predicted, it still helps prove that any loss of mental or physical faculties was due to alcohol in the system, regardless of actual BAC.

In fact, the second test should enhance the reliability of the first... given the time lag you mentioned a .05 would be about right if the first test was .09.

You may already be well aware of this, but I suspect the hospital draw is a serum result, and the 2nd (forensic) is a whole blood result. While related, the 2 values cannot be compared directly.

In fact, if the .09 IS a serum result, that translates to only .08, or actually a little less than .08

[This message was edited by Forensicscientist on 05-21-10 at .]