Client arrested and charged with felony DUI (3rd offense) following a traffic stop for an alleged lane violation.  Case was sent to District Court for filing as a felony due to client's history with DUIs.  The case involved a blood draw to determine client's blood-alcohol level.  Lab results showed a BAC of 0.102, an amount over the legal limit of 0.08.  As this case involved a blood draw by a nurse at Shawnee Mission Med Center, then the state needed the nurse to appear at preliminary hearing to testify to her credentials and procedure she followed during the blood draw.  She failed to appear at both hearing dates the state requested for the preliminary hearing.  Without her testimony, the blood result could not be admitted due to lack of foundation necessary to admit the evidence in a court of law.  Sometimes defense lawyers will "stipulate" to the blood results.  In doing so, you are waiving any objections to the blood draw process and the credentials of the nurse or other professional who can draw blood.  In other words, you are helping the state in their case against your client.

The decision to request a preliminary hearing and then to refuse to stipulate to the blood result was a very smart decision in the end.  The result was a dismissal of the DUI case based on a lack of evidence.  It is true the prosecutor could have proceeded without the blood result, but in this case the client performed well on the field sobriety tests.  Without the blood rest result, the prosecutor could not meet his burden of proof and so the dismissal was warranted in this situation.

As mentioned above, some lawyers simply "waive" the preliminary hearing and jump right to motion hearings or a trial. But I think its best practice to move forward with the preliminary hearing when a blood draw is involved since the nurse must be present to lay foundation for the blood result.  We got lucky in that the nurse had retired and moved out of county.  She was therefore hard to serve with a subpoena.  This is not the fault of the state or law enforcement.  It simply worked in our favor and the root cause was not stipulating to the blood test results from the very beginning.