Blood tests in Michigan OWI cases

In a Michigan OWI case, blood may be drawn at police request only by a licensed physician or a qualified person acting under a physician's delegation in a medical environment, and the sample must be collected, sealed and analyzed under State Police rules.^[1][2][6] Blood evidence can also come from a hospital draw for medical treatment after a crash, or from a draw under a search warrant.^[7][8] This page covers who draws the blood, how it is handled and tested, the independent-test right, and how the defense gets the results.

How blood testing comes about

Route	Rule
Officer's request after arrest	The test is given at the request of an officer with reasonable grounds to believe the person committed a listed crime, and the arrested person must be advised of the statutory rights.[4][9]
Breath samples do not agree	If a third breath sample does not agree with either of the first two within tolerance, the person is asked for a blood or urine sample.[10]
Search warrant after a refusal	After a refusal no test may be given without a court order, but the officer may seek one; under a warrant the implied consent statute does not apply.[11][8]
Hospital draw after a crash	A sample drawn for medical treatment after an accident is admissible, and the facility must disclose the result to a prosecutor who requests it.[7][12]
Deceased driver	Blood must be drawn as the medical examiner directs, with results sent to the investigating agency and then to the State Police.[13]

Who may draw blood

Under MCL 257.625a(6)(c), "Only a licensed physician, or an individual operating under the delegation of a licensed physician under section 16215 of the public health code … qualified to withdraw blood and acting in a medical environment, may withdraw blood at a peace officer's request."^[1] Urine and breath samples must be collected "in a reasonable manner."^[1] A physician or delegate who draws or analyzes blood under the Vehicle Code is not civilly or criminally liable unless the draw or analysis is performed negligently.^[1]

People with hemophilia, diabetes, or a condition requiring an anticoagulant under a physician's direction are not considered to have consented to a blood draw.^[14] In People v Hyde (2009), police told a diabetic driver he had to give blood under implied consent; the Court of Appeals rejected the argument that the evidence would inevitably have been obtained with a warrant.^[15]

How the sample is collected

The State Police blood and urine rules set collection requirements.^[2]

• No alcohol or alcoholic solution may be used as the skin antiseptic.^[2]
• Blood is drawn into a tube containing sodium fluoride as a preservative.^[2]
• Urine is collected using the State Police kit procedure on form FSD-93.^[2]
• Collection must be witnessed so the sample can be authenticated, each sample labeled, and samples sent to a lab sealed in a way that ensures their integrity.^[2]

How the sample is tested and reported

Accepted lab methods include gas chromatography, including headspace, for ethanol, and LC/MS, GC/MS and immunoassays for drugs.^[6] Calibration must be verified with control samples each day tests are run, and the control results kept for at least 1 year.^[6] Blood alcohol is expressed in grams per 100 milliliters; serum or plasma results must be stated as an equivalent whole-blood concentration; urine results are stated per 100 or per 67 milliliters.^[3]

The result is admissible and presumed to be the same as the level at the time of driving.^[16] Jurors are told they may infer this, may weigh evidence of drinking after driving, and should consider whether the equipment was maintained and the test properly given.^[17][18] The timing question is covered on rising BAC and the time-of-driving question.

The statute and State Police rules cited on this page do not state how long the State Police toxicology lab keeps blood samples or how it handles defense requests for retesting, so this page states no rule on either.

Drug results in blood

Michigan law forbids driving with any amount of a schedule 1 controlled substance or cocaine in the body, and marijuana remains on schedule 1.^[19] The Michigan Supreme Court held in People v Feezel (2010) that 11-carboxy-THC, an inactive byproduct of the body breaking down THC, is not a schedule 1 substance.^[20] In People v Stock (2021) it reversed convictions where the prosecution showed only an unidentified cocaine metabolite without evidence that cocaine itself was in the body.^[21] Michigan law sets no numeric THC blood limit.^[22] See THC blood tests and impairment and evidence in drugged-driving cases.

Consent and the sample after the draw

In People v Stricklin (2019), the Court of Appeals held that fear of losing one's job because of a refusal suspension did not make a driver's express consent to a blood draw involuntary.^[23] In People v Woodard (2017), it held that blood lawfully collected with consent may be analyzed for the purpose it was drawn, and withdrawing consent afterward does not stop the analysis.^[24]

The independent test

A person who takes the officer's chemical test must be given a reasonable opportunity to have a person of his or her own choosing give one of the chemical tests within a reasonable time after detention; the person charged must arrange the analysis.^[4] The statute gives this right to a person who takes the officer's test.^[4] The Court of Appeals held in People v Green (2015) that a defendant cannot pick a particular State Police analyst to perform the independent test, and that a court cannot compel the State Police lab to retest its own evidence; the court rule only allows the defense an opportunity to test physical evidence.^[25] Under MCR 6.201(A)(6), on good cause a court may order that a party be given the opportunity to test tangible physical evidence without destroying it.^[26] More is on the right to an independent chemical test.

Hospital blood after a crash

If, after an accident, the driver is taken to a medical facility and blood is drawn then for medical treatment, the analysis is admissible in any civil or criminal proceeding, whether or not the person was offered or refused a police test.^[7] The Supreme Court has described the exception as narrow: prosecutors can obtain the chemical test results, not all medical records, and cannot obtain a sample for their own testing.^[27] In People v Keskimaki (1994), hospital results were suppressed because a car found on the shoulder with the driver slumped over the wheel was not an "accident."^[28] See OWI investigations after a crash.

Getting the results

When blood or urine results are not immediately available, the officer issues the temporary license and notes the pending test; if the report shows no unlawful alcohol content or drug, the license is returned by first-class mail.^[29] In the criminal case, test results must be made available to the person charged or the attorney on written request to the prosecution, with a copy filed with the court, at least 2 days before trial; failing to fully comply bars the prosecution from using the results.^[5] Court-rule discovery separately covers police reports, search-warrant affidavits and returns, and exculpatory information.^[26] See discovery, video and test records.