Charged w/OWI in Wisconsin

[newgram52]

What is the name of your state? WI

My son was in a car accident where he lost control of the car but the cause was not due to impairment by alcohol but by being in a distracted state at the time due to depression and breaking up with his girlfriend. He was being treated for depression - losing his job and other life circumstances - but had not been taking his meds. He had no problem consenting to the blood test because he knew he only had 3 beers in 5 hours and no drug use. Though I can understand why the officer thought there had to be some kind of alcohol or drug impairment because the car was a complete mess. All medical personnel on the site were amazed that he wasn't seriously injured or dead. I actually consider it a miracle but no other cars were involved - only my son and the barrier walls on the highway.

After my son came home from the hospital, we discovered his drivers license had been taken by the officer though that was not indicated anywhere on the paperwork given to him. Nor was it stated anywhere on the ticket issued to him for OWI that the license has been suspended. Five days after the accident, he got 2 additional tickets in the mail - one for failure to keep control of the vehicle and one for no seat belt (which is ludicrous, because had he not had his seat belt on, he would have flown through the windshield -- the car rolled).

We assumed that he would get a copy of the tox screening and when none came in the next 2 weeks, we requested the lab results from the hospital. They sent a copy of and confirmed that they only did a hematology screening. Though they had the request for the tox screening in the file, there were no results or any indication that it went to a different lab for processing. Then yesterday (3 weeks after the accident), he gets a letter from the sheriff's office saying that the original court date has been cancelled because the tox results would not be available for 3-4 months and another court date would be assigned at that time.

So our questions are these: Is my son legally within his rights to request a copy of the police report and find out where the toxology is being done? What about the seeming lack of paper trail in the hospital records? How can we be sure that the tox report that comes back in 3-4 months is actually his? And should his drivers license be returned to him until after he is actually convicted of OWI? He needs transportation to find a job and get his life back on track.

 

[paguy88]

What is the name of your state? WI

My son was in a car accident where he lost control of the car but the cause was not due to impairment by alcohol but by being in a distracted state at the time due to depression and breaking up with his girlfriend. He was being treated for depression - losing his job and other life circumstances - but had not been taking his meds. He had no problem consenting to the blood test because he knew he only had 3 beers in 5 hours and no drug use. Though I can understand why the officer thought there had to be some kind of alcohol or drug impairment because the car was a complete mess. All medical personnel on the site were amazed that he wasn't seriously injured or dead. I actually consider it a miracle but no other cars were involved - only my son and the barrier walls on the highway.

After my son came home from the hospital, we discovered his drivers license had been taken by the officer though that was not indicated anywhere on the paperwork given to him. Nor was it stated anywhere on the ticket issued to him for OWI that the license has been suspended. Five days after the accident, he got 2 additional tickets in the mail - one for failure to keep control of the vehicle and one for no seat belt (which is ludicrous, because had he not had his seat belt on, he would have flown through the windshield -- the car rolled).

We assumed that he would get a copy of the tox screening and when none came in the next 2 weeks, we requested the lab results from the hospital. They sent a copy of and confirmed that they only did a hematology screening. Though they had the request for the tox screening in the file, there were no results or any indication that it went to a different lab for processing. Then yesterday (3 weeks after the accident), he gets a letter from the sheriff's office saying that the original court date has been cancelled because the tox results would not be available for 3-4 months and another court date would be assigned at that time.

So our questions are these: Is my son legally within his rights to request a copy of the police report and find out where the toxology is being done? What about the seeming lack of paper trail in the hospital records? How can we be sure that the tox report that comes back in 3-4 months is actually his? And should his drivers license be returned to him until after he is actually convicted of OWI? He needs transportation to find a job and get his life back on track.

few things my friend...

you said your son drank 3 beers in 5 hrs? right? well how do you know what his BAC will be??? you don't that's why they wait for the lab work...

next is he on meds? plenty of meds that say not to mix with booze.. could be a drug dui.. you will have to wait for the results...

also you DO NOT have to be over .08 to get charged with dui... he could be say.045 and the officer can still charge him...

more than likely he will get a packet in the mail from a local Magistrate Judge saying he is commaned to appear before him for a prelim hearing...

get a lawyer ASAP and good luck.

 

[paguy88]

This poster wrote:
His attorney is free to challenge the chain of evidence custody, but that will be a very expensive proposition. You'll need an attorney who really knows his business to pull it off. Unfortunately, most attorneys that do know their stuff wouldn't recommend that strategy. The procedure for handing a blood draw is simple, straightforward stuff, and is standard throughout the state. It's pretty much legally bullet-proof.

OH yea?

read this dui blog interesting stuff

How Do You Know the Blood They Tested Was Yours?
Posted by Lawrence Taylor on September 10th, 2007

Let me tell you about one of my law firm’s cases that ended up in a Los Angeles Times article entitled “DUI Case Botched by Blood Mixup“.

One of our attorneys had a young client who had been arrested for drunk driving by the Los Angeles Police Department and had a blood sample drawn from his arm. He swore to us that he was innocent, and we believed him. Problem: the blood alcohol content of the sample was .15% — almost twice the drunk driving limit.

Now what?

We obtained a portion of the sample from the LAPD crime lab and sent it to a private lab that we use for reanalyzing the blood samples of all our DUI clients. The lab reported the blood alcohol level to be .13% — lower, but a long way from being under .08%. As we requested, they also tested for preservative and anticoagulent (either fermentation or coagulation can raise the alcohol level in the sample), but everything appeared in order.

Our client still insisted he was not driving under the influence of alcohol. The only other possibility was a faulty chain of custody. In other words, the LAPD lab (the same one that botched the O.J. Simpson case) got the vial of our client’s blood mixed up and tested someone else’s blood.

So we had the sample blood-typed to see if it was that of another arrestee. Result: type “O”– the same as our client’s. But, then, that’s the most common type of blood.

We decided to try something different, something that, to our knowledge, had not been done before in any DUI case. We had blood taken from our client and, with a portion of the remaining sample from the LAPD lab, shipped to a laboratory in Oklahoma that specialized in DNA testing.

A month or so later the report came in: the blood tested by LAPD was conclusively not that of our client.

The prosecutor in the case initially refused to accept these results. But after we proved that the comparison blood had come from our client and after LAPD checked the blood themselves, he reluctantly dismissed all criminal charges. Predictably, in the L.A. Times article LAPD tried to point the finger at someone else:


Police officials said they are investigating how the mix-up occurred and who is responsible, But, they said, they are fairly confident that the lab did not make a mistake. One possible explanation, they said, was that the blood was mistakenly labeled when it was initially drawn by nurses at LAPD’s jail intake facility in Van Nuys.


As always, the police claim infallibility: “We do not make mistakes…It was the nurses”.

So how could this have happened? The truth is that it probably happens far more commonly than you suppose.

When a blood sample is drawn from the suspect in a DUI case rather than using a breath machine, the sample is supposed to be inserted into a vial containing preservative and anticoagulent, then shaken and sealed. Procedures require that a chain of custody be established: the location of the vial of blood must be identifiable at all times so that it does not become contaminated or mixed up with someone else’s vial. This is done by labelling the seal with identifying information, then usually placing the sealed vial in an evidence locker (which should be refrigerated but often is not) until it is transported to the crime laboratory for further storage and refrigeration. At any stage of this chain of custody, of course, things can go wrong with the vial or the records.

It may be a week or so before the vial is finally analyzed. This is commonly done using gas chromatograph instruments, and the vial is one of many analyzed in large “batches”. A batch is a group of vials, perhaps 40 or more which are analyzed in sequence; this is much faster and more economical than isolating, identifying and separately analyzing one vial after another. Of course, it is critically important that the sequence of vials tested by the gas chromatograph coincide with the sequence of vials in the records. If the sequence of numbering of the vials is off by one, then the records will show a result from the analysis of another vial. And it won’t be just one person whose blood is falsely reported: every other vial may also be one off — and will all be wrong. And you have 40 people people facing criminal charges based upon false evidence.

“How do I know the blood they tested was mine?” Simple – if you can get a portion of the sample from the crime lab and have an extra $1200 for DNA testing laying around.

Otherwise, I guess you’ll never know….

 

[newgram52]

I thank all of you for your great input. In follow up, let me say that we got the results of the alcohol level today - .026. If the results of the drug test come back nil, do you still advise obtaining an attorney? Obviously I know having one is always good; however, my son is without a job and now undergoing tests for thyroid cancer so money is a concern.

PS, my son did not tell the officer he was not wearing his seat belt. In fact, he told the officer he was wearing his seat belt and after the car came to a stop after rolling, he took it off to lay down and try to feel around for his cell phone. He was not ejected from the car and did not receive injury that would attest to no seat belt. In fact, outside of neck and back muscle trauma, he came out of it without a scratch. I find it pretty unbelievable that he wouldn't have some type of abrasion from hitting something in the car with his head or another body part when it rolled if he was not wearing a seat belt.