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Pa. Super. Ct. Rules Time of Blood Draw is Testimonial Evidence

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The Pennsylvania Superior Court has decided the case of Commonwealth v. Hajdarevic, 2020 Pa. Super. 175. In this case, the Court held that the time a defendant’s blood is drawn is testimonial evidence for purposes of the Sixth Amendment Confrontation Clause. In other words, a defendant has a constitutional right to cross-examine the individual who drew his blood in DUI cases, rather than an expert who is standing in for the lab technician. This is an important decision, since the government often uses a single expert to process all of their DUI cases in a given county.

The Hajdarevic Decision

In Hadjarevic, the defendant was stopped and arrested for DUI. The arresting officer transported defendant to the hospital for a blood sample. At the hospital lab technician Fariana Bermejo took a sample of the defendant’s blood. The blood was then analyzed by government expert Theresa Ritchtick. At trial Ritchtick and the responding officer testified. However, Bermejo did not testify. Ritchtick was unable to testify based on personal knowledge as to the time the blood draw was taken. The government argued the expert’s testimony was sufficient. The Court disagreed.

According to the Superior Court, Hadjarevic has a Sixth Amendment right to cross examine Bermejo and Ritchtick. The Court reasoned that the time a defendant’s blood is drawn is a material factual element of a DUI offense. Specifically, the statute requires an individual’s blood or breath alcohol concentration to be within a certain threshold within two hours after the individual has driven or operated a vehicle. Therefore, because timing is critical to a conviction for DUI, the time of the blood draw constitutes a core testimonial statement to which the Defendant is constitutionally entitled to cross-examine witnesses.

Implications for DUI Cases

The Hadjarevic case has very significant implications for DUI cases in Pennsylvania. In Philadelphia county, the vast majority of DUI cases are prosecuted using the responding officer and a hired expert of analyzes blood samples. The Hadjarevic decision now requires the testimony of the lab technician who took the blood sample. This may have significant implications, as more DUI cases may get dismissed where the defense attorney refuses to waive confrontation clause issues as to the time of the blood draw. Further, if the government cannot use a general expert referred to in Hadjarevic as a “surrogate witness” to establish the time of the blood draw, the government may be unable to meet its burden in many DUI cases. Therefore, the Hadjarevic decision is a significant win for Defendants arrested and charged with Driving Under the Influence.

Winning Your DUI Case

Many criminal defendants who are charged with DUI assume they must take a program or plead guilty. This is not true. The government has the burden of proving the elements of a DUI beyond a reasonable doubt. At a minimum this includes proving; 1.) the defendant operated a vehicle; 2.) under the influence of alcohol or a controlled substance; 3.) to a specific concentration within two (2) hours of the defendant’s arrest. Further, the defendant may have a defense to the DUI if the government illegally stopped or searched the defendant. Finally, taking the defendant’s blood has constitutional implications that may warrant suppression. Therefore, it is important to speaking with a qualified Philadelphia Driving Under the Influence Lawyer before accepting a deal or pleading guilty.

Our Successes

Our firm points with pride to the case of Commonwealth v. T.S. In that case the Defendant was charged with DUI: Third Offense. At the time of his arrest defendant was asked to submit to a blood test. T.S. consented but at the time was suffering from high blood sugar levels due to a diabetic condition. Copoulos successfully argued that Defendant’s consent to blood draw was involuntary since he was suffering from a diabetic condition at the time of the test. The blood results were suppressed and the defendant was found not guilty of DUI. If you have been charged with a criminal offense, contact the Law Office of Mark D. Copoulos to resolve your legal matter. We will work tirelessly to ensure we obtain the best result possible. We remain informed on the latest changes in the law to maximize your odds of success. While no law firm can guarantee a successful outcome, we will never stop working to achieve the best results for our clients. To schedule a free consultation call our office at 267-535-9776.

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Mark D. Copoulos

Mark D. Copoulos

From 2008-2011 Mark D. Copoulos worked for the First Judicial District, the Honorable Arnold, and the Honorable Shelley-Robins as interns and/or staff....

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