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DUI Case Highlights from Paul Burglin San Francisco DUI Attorney - Hunter v. State

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Expired Tube and “Vigorous Shaking" Leads To Exclusion of BAC Result
Hunter v. State
___ A.3d ___, 2012 WL 5349395 (Del.Supr.)

Sometimes a leading question can backfire, and sometimes the best objection is the one you don’t make.

Q: Okay. So she shook it vigorously just to make sure everything was mixed up properly, right?

A: Yes.

On cross, the defense attorney had the witness read the manufacturer’s admonition on the collection kit, “Do not shake vigorously."

The prosecutor’s helpful witness also said the expired date on the tube did not affect the sample’s integrity, only to be asked on cross to read the admonition that states, “Do not use tubes after the expiration date."

This was an ugly-fact case with the suspected drunk driver seriously injuring an EMT with a vicious kick, and a forced blood draw that involved the use of a taser. Yet the Court reversed the DUI conviction for failure to properly exclude the blood test evidence as foundationally unreliable.

“Following the manufacturer’s use requirements ensures the reliability of the scientific test. It is this guarantee of reliability and accuracy that is the foundational cornerstone to the admissibility of the results of a scientific test. Without that guarantee of reliability, there exists too great a risk that a jury will be persuaded by scientific evidence that is unreliable." (citing Clawson v. State , 867 A.2d 187, 191 (Del.2005), which held that breath-alcohol results were inadmissible for failure to only observe defendant for 19 minutes instead of the manufacturer’s 20-minute requirement).

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