defense against false positive blood test DUI

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Latest post Tue, Jul 19 2016 12:27 AM by M Read. 7 replies.
  • Sat, Jul 16 2016 5:42 PM

    • MrDave
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    defense against false positive blood test DUI

    My son was pulled over for an out of date inspection sticker.  Officer stated that he smelled pot and did field sobriety test.  Son passed.  vehicle was clean, son was clean.  officer wanted blood test and son agreed knowing he had not consumed any drugs or alcohol.  2 months pass and now he is being charged with DUI due to presence of amphetemine in the blood test.  Son claims it is due to pre-workout supplement that he had been taking prior to weighlifting.

    How can this happen?  Lawyer wants to just plea bargain (2nd offense - son had pot DUI in past) which will result in probation or possible weekend jail. I think i understand that the law does not care how the substance got in the blood - a positive is just a positive but how does my son plead guilty to something that isnt illegal?

    How do you find a lawyer that can fight this when they wont discuss the case without a commitment?

     

    thanks.

  • Sat, Jul 16 2016 5:55 PM In reply to

    Re: defense against false positive blood test DUI

    MrDave:

     Son claims it is due to pre-workout supplement that he had been taking prior to weighlifting.

    How can this happen?

    Just because it is an over the counter work out supplement does not automatically equate to legal.  Many of them are made over seas and the combination of ingredients can chemically cause false positives on drug tests.  It is the primary reason that olympic and professional athletes are cautioned repeatedly to be extremely cautious about what supplements they take and where they get them.

    If he still has the supplement I highly recommend he look at the ingredients, the manufacturer/supplier, and consider having it tested for what is REALLY in it.

    MrDave:
    How do you find a lawyer that can fight this when they wont discuss the case without a commitment?

    No lawyer is going to tell you how to fight the case without your hiring them.  All you can do is interview several and then hire the one that you feel will represent his interest the best.

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • Sun, Jul 17 2016 12:01 AM In reply to

    Re: defense against false positive blood test DUI

    Under Pennsylvania's DUI statute, the drug doesn’t have to be illegal to result in a DUI offense. It is illegal to drive in Pennsylvania with any amount of a controlled substance (and controlled substances include some prescription drugs) in the blood and it is also illegal to drive with any drug (which can include even over the counter substances) or combination of drugs/alcohol that actually impairs the person’s ability to drive. Assuming your son is being truthful with you — and I've seen plenty of kids lie to their parents about the drugs and alcohol they use — there is the question of how the amphetamine got into his blood. If I were his lawyer I get the blood sample and have it independently tested to confirm the state’s results. I'd also take a close look at that supplement and find out what it truly contains and if anything in it might test as being an amphetamine. If that supplement is to blame, the question will be whether it contains some drug that is either a controlled substance or that might impair your son’s ability to drive. There are lots of supplements and other products sold out there that are at best of dubious benefit and can actually be unsafe, including impairing ability to things like driving. Depending on what the results are of the independent blood test and the investigation into the supplement (and whatever else your son might be taking) perhaps there is a viable defense here. But it won’t be cheap to do all this and get the expert testimony that would be needed at trial.

  • Mon, Jul 18 2016 9:03 AM In reply to

    • Ford
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    • Joined on Thu, Mar 16 2000
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    Re: defense against false positive blood test DUI

    As others indicate, legal substances can be the basis for DUI.  Oh, like alcohol.

    There is no driving pattern if he was stopped for an inspection sticker, but beware that the police report might be "reinforced" with additional observations.

    The police audio/video would be very important here because it is a memorialization of what actually happened.  A jury gets to decide on their own if the person sounds or looks impaired.  

    In my state, and likely most others, the state has to prove more than just the presence of the substance and driving a car.  The state has to show impairment caused by the substance.  Otherwise, someone could get a DUI based on taking an aspirin.

    You likely want third-party testing, and you'd want testing that shows the amount of the substance in the body, if possible.  A test that is just positive/negative (qualitative) is not helpful.  A test that measures amounts (quantitative) can show an amount that allows a doc, or possibly a chemist, to testify that the amount is insufficient to cause intoxication. 

    Best way to find an attorney is word of mouth.  Or local news articles about attorneys who actually went to trial, regardless of whether they win or not.  (The best attorney in the world cannot beat an unbeatable case.)

    And be prepared for the possibility that your son is not being entirely truthful.  The pot DUI was maybe a surprise, I'm guessing.

  • Mon, Jul 18 2016 9:18 AM In reply to

    • Ford
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    Re: defense against false positive blood test DUI

    Also, a false-positive occurs when the substance is not present, but the test comes back positive.  For instance, coffee or cocoa might set off the NIK test for marijuana, if I recall correctly.  Usually occurs with qualitative testing, and I suspect, or hope, they did something like GC/MS testing here.

     

  • Mon, Jul 18 2016 1:00 PM In reply to

    Re: defense against false positive blood test DUI

    MrDave:
    How can this happen?

    Not sure what this question means.  Are you seeking some sort of scientific explanation as to how a "pre-workout supplement" could cause a positive result for amphetamines?  You can google it, but this obviously depends on what the supplement contained.

     

    MrDave:
    Lawyer wants to just plea bargain (2nd offense - son had pot DUI in past) which will result in probation or possible weekend jail. I think i understand that the law does not care how the substance got in the blood - a positive is just a positive but how does my son plead guilty to something that isnt illegal?

    HOW does he do it?  I don't think that's really what you intended to ask, and it most certainly IS illegal to drive under the influence of methamphetamines.  If your point was that the supplement was legal, that's hardly a meaningful point.  Alcohol is also legal, but it's obviously not legal to drive under the influence of it.

     

    MrDave:
    How do you find a lawyer that can fight this when they wont discuss the case without a commitment?

    I'm not quite sure what the last clause in this sentence means, but there is a "find a lawyer" link prominently displayed near the top of every page at this site.

  • Mon, Jul 18 2016 3:11 PM In reply to

    • Kivi
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    Re: defense against false positive blood test DUI

    You don't say how old your son is, but if he is 18 or older, then he is the potential client, not you. No attorney will discuss his case with you if he is a legal adult. As an adult, the responsibility for retaining counsel really is one that should fall on his shoulders, not yours. You can offer to help financially with the retainer, but that won't entitle you to any info either.

    If your adult son cannot afford counsel, then he may be entitled to the services of the public defender.  Public defenders do not have time for "hand holding', but most do spend a lot of time in court on these kinds of cases. Most "know the lay of the land" and the tendencies of the local judges who are likely to hear the case. The possible penalties for conviction on second DUI offense usually do include some jail time. (In some jurisdictions, if there is no possibility for time in jail, then your son might not qualify for the services of the public defender.) If your son insists upon going to trial (and the public defender already is representing him), then his public defender has to take the case to trial and give it his best effort, even if that is not his legal recommendation to your son.

    If your son has a private attorney, but is disatisfied, then he can find another attorney. There are many attorneys out there who specialize in DUI defense, but DUI defenses, when you do not qualify for the services of the public defender (or choose not to use the public defender), can be VERY EXPENSIVE (around $10,000 to $15,000 in my neck of the woods, maybe a bit less where you are, but probably not a whole lot less).

     

  • Tue, Jul 19 2016 12:27 AM In reply to

    • M Read
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    Re: defense against false positive blood test DUI

    Feature: Citing Startling Research on False Positive Drug Tests, Researchers Call for Moratorium on Field Drug Test Kit Testing

    http://stopthedrugwar....

    the date on this article is March 6, 2009. There may be more recent information. Maybe it can somehow help.

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