Daniel Hynes

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DWI expert officers instructed to lie

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DWI “Expert” Officers Instructed To Lie Under Oath

In most DWI trials, the prosecution’s most valuable witness is their crime lab’s blood alcohol expert, commonly called a forensic toxicologist. A forensic toxicologist explains to a jury what a Breathalyzer or blood test’s results were and what this means, what the defendant’s probable blood alcohol content (BAC) was at the time they were driving, and whether the Breathalyzer was properly maintained and in good working order at the time it was used. In most instances, the accuracy and honesty of this expert witness’s testimony under oath is crucial to the trial’s outcome.

Unfortunately, these expert witnesses are not honest, nor objective, in their testimony. As an employee of the law enforcement agency, he or she believes that their duty is to assist the prosecutor in securing a conviction – and their testimony is tailored accordingly.

The same is required from phlebotomists, or the technicians who draw blood from the defendant. Phlebotomists also testify as to the specific procedures used to draw blood, procedures used for identifying a sample, and so forth. In trial, their testimony is equally as critical as that of the toxicologist.

Below is a verbatim copy of instructions given to phlebotomists by the San Diego Police Department regarding how to testify in a driving while intoxicated trial:


You will be asked your name.

You do not have to remember drawing [blood from] the particular defendant.  Just say you draw many patients each day you work and it is impossible to remember each one.

You may be asked how you draw the blood.  It is the standard procedure you follow for ALL blood draws, EXCEPT that you use a NON-ALCOHOLIC antiseptic wipe (Benzalkolium) to cleanse the phlebotomy site.  You ALWAYS follow the same procedure for every blood draw.  The blood is drawn into grey top tubes provided by the San Diego Police Department.  The tubes contain an anticoagulant (Potassium Oxylate) and a preservative (Sodium Fluoride).  You check the tube for the presence of a loose, slightly pink powder before you use it.  After you fill the tube with blood, you invert the tube 10 times to mix the blood with the anticoagulant/preservative.  You will always mix any tube with an anticoagulant 10 times (you count the inversions).  The important things to remember is that you always follow the same procedure, so even though you don’t remember this particular individual, you know that you drew the person following our standard procedure.


The suspect is identified by the police officer and, when possible, you check the ID or ask the suspect their name.  The police officer completes the label with the suspect’s name, DOB, etc.  You put your name, date, draw time, and place on the label and place the label on the grey top tube.  You then place the grey top tube in the plastic chain-of-custody tube, put the cap on it, and seal it with the sealing tape provided by the SDPD.  You then hand it to the officer and he takes charge of it.

Unbelievably, these instructions were obtained by San Diego DWI attorney Cole Casey. Seeing a phlebotomist outside of the courtroom he was about to enter, he asked him what he was reading before he was about to go in and testify. Surprisingly, the witness handed him the document, and it quickly was shared among attorneys.

What makes these instructions so outrageous is that these instructions on what to say during the trial are given to the prosecution’s witnesses who are to testify under oath. The witnesses are explicitly told to testify “as instructed” – not to what they know to be true or to what actually occurred in a DWI case.

New Hampshire DWI cases are never quite as straightforward as a prosecutor would like for a defendant to believe. With the assistance of an experienced NH DWI attorney, it is quite possible to have your charges reduced – if not dismissed altogether. To speak with our experienced staff regarding your unique case, contact our law offices today.


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Guest Sunday, 16 June 2024