When you get arrested for DUI in Sacramento County, law enforcement may ask you to submit to a breath test (Breathalyzer) and/or a blood draw to measure you blood alcohol concentration, or BAC. In California, the legal limit to drive a car is .08. A BAC at or above .08 can result in your being charged with DUI. If you have a DUI conviction already on your record, you can be arrested for DUI for having a BAC as low as .01.
As concrete as the evidence gained from a DUI blood draw might seem, there are multiple areas in the process where potential errors can and do occur. The law is specific with regard to how a DUI blood sample must be collected, preserved, labeled and stored. If any of these elements is performed incorrectly, it can result in the blood draw evidence being challenged or thrown out.
Without the BAC, it can be difficult to prove that DUI occurred. Many Sacramento judges, and juries in particular, are hesitant to find someone guilty of DUI without blood alcohol concentration evidence.
How can you challenge DUI blood sample evidence?
1. Forced Blood Draws in Sacramento DUI Cases California Vehicle Code Section 23612 (a) states that anyone driving a motor vehicle has given his or her implicit consent to having a BAC breath and/or blood test when there is probable cause for a police officer to have requested it. The code also states that the Department of Motor Vehicles can fine and suspend the license of any driver who refuses to submit to testing.
However, in 2013 the US Supreme Court ruled that law enforcement must have a search warrant to force a suspect to submit to a DUI blood draw. In California, search warrants are issued only for felony DUIs, which are DUIs involving injury, and those concerning a driver who has had three or more previous DUIs in the past 10 years. If your DUI charge was a misdemeanor and you refused to submit to a voluntary blood draw but a law enforcement agent directed a lab technician or healthcare provider to perform this test against your will, it is a violation of your Fourth Amendment rights, and the resulting BAC is inadmissible. If yours was a felony DUI and law enforcement had a warrant to obtain a forced blood draw, the protocols used to collect the sample may have been rushed or disorderly, and should be vigorously scrutinized by an experienced Sacramento DUI attorney to ensure the sample was collected, preserved and stored correctly.
2. Improper Collection of a DUI Blood Sample Title 17 of the California Code of Regulations outlines specific protocols for the collection, handling and storage of a DUI blood draw to prevent compromise and contamination. But, because there are multiple people involved in the process, breaches and accidents happen, and any can result in having your DUI blood test challenged or discounted. Without a BAC result in evidence, your DUI charge may be reduced or dismissed.
Errors During Collection · California law requires that your blood draw be performed by a doctor, qualified nurse or trained medical technician in a hospital setting using clinically accepted procedures for the collection of a blood sample. There must be evidence that the person who took the blood sample was qualified to do so. Lacking proof, the evidence may be challenged. ·
The blood draw site must be properly sterilized using an approved disinfectant. Guess which common sterilizing agent should NOT be used: alcohol. Some hospitals and/or phlebotomists (the technicians who draw blood) are unaware of this rule, and will use alcohol to swab the blood draw site. When the use of an alcohol-based agent can be proven, it can create the obvious inference that the alcohol may have contaminated the blood sample, and force the blood evidence to be excluded. ·
The DUI blood sample must be properly mixed with the appropriate concentration of preservative and anticoagulant. The vials used for the purpose of a DUI blood draw come equipped with the necessary levels of these agents, but they must be carefully blended with the blood in order to work effectively. If a blood sample was taken but not mixed according to regulation, the sample may be considered contaminated and taken out of evidence.
Errors During Storage and Analysis One advantage of a DUI blood test over a breath test is that the blood sample provides a lasting specimen that can be reanalyzed using an independent, unbiased laboratory. An experienced Sacramento DUI lawyer will file what is known as a blood split motion to have your sample retested to show if your BAC levels were possibly inaccurate due to questionable sample collection, analysis or storage.
Reanalysis of the blood draw and inspection of the collection and storage documents can show if your DUI blood sample was:
· Mixed incorrectly so that the preservative and/or anticoagulant were unable to preserve the specimen according to regulation
· Measured using equipment that was flawed or not calibrated to the legal standard · Inadequate in volume to provide trustworthy analysis
· Taken by someone who was unqualified to perform a DUI blood draw
· Stored improperly, resulting in hemolysis and possible fermentation of the sample, which can cause a higher BAC reading
· Cross-contaminated with other samples
· Handled by someone outside the appropriate chain of custody
California law presumes that BAC tests results comply with Title 17 regulations and are therefore accurate. It is the job of your experienced DUI defense attorney to look for flaws in the collection, preservation or storage of your blood sample, and seek to have the blood evidence mitigated or eliminated.
If you or someone you know needs help with the results of a damaging blood draw analysis or BAC report in a DUI case in Sacramento, Roseville, Folsom, Fair Oaks, Gold River, Citrus Heights, Elk Grove, Davis or other area in Northern California, I am a phone call away. I have 20 years of DUI defense experience and will work diligently to fight for your rights.