California DUI Blood Testing:
Contamination & Error

 

Although DUI blood testing is thought to be more reliable than DUI breath testing,¹ its results are still subject to error and therefore open to attack.

• Blood contamination,



• switched blood samples, and



• fermented blood...

are just a few examples of how botched blood testing can lead to wrongful DUI charges. An experienced California DUI defense attorney knows how to identify these problems and use them to get charges reduced or dismissed.

California DUI laws regarding blood testing procedures

California DUI laws impose certain conditions on law enforcement and medical personnel that must be satisfied in order to ensure the accuracy, and prevent contamination, of DUI blood test results. These rules and regulations are contained in Title 17 of the California Code of Regulations.² Examples of these include (but are not limited to):

• having a trained technician draw the blood,



• sterilizing the draw site with something other than an alcohol based product (so that the sterilizer used to clean the skin doesn't add external alcohol to the DUI blood sample),



• making sure that there are adequate levels of anticoagulants and preservatives in the vial, to prevent contamination or clotting of the DUI blood sample



• adequately mixing the blood sample with the proper amount of anticoagulants and preservatives,



• properly storing the blood sample, and



• making sure that the chain of custody is recorded and undisturbed. (The "chain of custody" accounts for everyone who had access to the blood sample.)

If any of these protocols isn't strictly adhered to, the accuracy of the DUI blood test results may be compromised. Depending on the severity of the botched procedures, your California DUI defense attorney will either (1) prevail in a motion to have the evidence of the blood sample thrown out of court, or (2) aggressively attack your BAC results in an effort to secure your acquittal.

California's implied consent law and its relationship to forced DUI blood draws

Everyone who obtains a California driver's license impliedly consents to providing a blood or breath sample to determine his/her BAC if lawfully arrested for driving under the influence. This is what's often referred to as California's "implied consent law".³

As a result, if you refuse a DUI chemical blood or breath test, you will trigger one of two responses:

1. The arresting officer will simply note that you refused to submit to a blood or breath test, or



2. the arresting officer (and as many other officers as it takes) will restrain you so that a nurse or trained officer can forcefully draw your blood. (It should be noted that either scenario will result in a minimum one-year driver's license suspension and an enhanced California DUI penalty.⁴)

If you are the victim of a forced blood draw, your California DUI defense attorney will be extra vigilant when investigating the procedures that were used to collect your DUI blood sample. As Michael Scafiddi, a well-known Barstow DUI defense attorney explains⁵, "It's very likely that a rushed or otherwise unexpected blood draw could involve bad protocol...mistakes that could ultimately vindicate my wrongfully accused client."

Your California DUI defense attorney can have your blood sample independently analyzed for contamination

One of the advantages to blood tests over breath tests is that...at the time of your DUI blood test...the officer must inform you of your right to have your blood sample preserved for future re-testing.

If you exercised this right, your DUI defense attorney can have your blood sample retested by a private laboratory. This is what's known as a "blood split." Blood splits allow independent laboratories to evaluate whether blood samples have fermented or clotted...either of which can result in inaccurate blood alcohol levels.

This means that if your BAC was over 0.08% , an independent laboratory may conclude, for example, that it only registered that high because there were inadequate levels of preservative in the blood vial to prevent fermentation.

This is one advantage over DUI breath testing. When you submit to a DUI breath test, there is no sample to save...the breath analysis is instant. But with blood testing, you have the ability to retest the sample for fatal errors.

This, coupled with other DUI defenses such as

• the rising blood alcohol DUI defense (otherwise known as the "on the rise" defense, the defense attacks charges of California Vehicle Code 23152b VC "driving with a BAC of 0.08%" by acknowledging that even though your BAC may have been above the legal limit at the time of your DUI blood or breath test, it may have been below that level at the time of driving),

and/or

• failure to follow California's Title 17 rules and regulations governing DUI chemical testing (that is, the rules that apply to California DUI blood and breath testing procedures),

can make for a very convincing case that your BAC is falsely high and that you are not guilty of DUI.

If you have additional questions or would like to discuss your case confidentially with one of our California DUI defense attorneys, please don't hesitate to contact us. We have local DUI law offices in the San Francisco Bay area, San Jose, Ventura, Los Angeles, Orange County, San Bernardino, Riverside, and several surrounding areas.

You may also find helpful information in our related articles on California Vehicle Code 23152b Driving with a BAC of 0.08%, DUI Breath Testing, Rising Blood Alcohol -- A DUI defense, Violations of California's Title 17 DUI Chemical Testing Procedures, DUI Chemical Test Refusals, and DUI Defenses.

For information about DUI blood tests in Nevada, go to our article on DUI blood tests in Nevada.

Legal References:

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¹Most forensic toxicologists believe laboratory DUI blood tests have an inherent range of error of about .005 % BAC; while breath test instruments have an inherent range of error of about .01 % to .02 %. But this is an inherent range of error. Failure to follow strict protocols can magnify this error many fold.

²Title 17 of the California Code of Regulations regulates California DUI laws regarding forensic analysis of blood and breath testing.

³California Vehicle Code 23612 -- Chemical, blood, breath, or urine tests. ("(a)(1)(A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested [italics added] for an offense allegedly committed in violation of Section 23140, 23152, or 23153...(C) The [breath or blood] testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153.") Because you have impliedly consented to these tests, you do not have the right to contact us prior to submitting to a blood or breath test.

⁴California Vehicle Code California Vehicle Code 23578 -- California DUI punishment [for DUI chemical test refusals]. Conviction of violation of Vehicle Code 23152 or 23153; alcohol concentration or refusal to take chemical test as special factor; [California DUI] penalty enhancement or probation. ("In addition to any other provision of this code, if a person is convicted of a violation of VC 23152 or VC 23153 [DUI], the court shall consider a concentration of alcohol in the person's blood of 0.15 percent or more, by weight, or the refusal of the person to take a chemical test, as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.")

⁵Barstow DUI defense attorney Michael Scafiddi is a former police officer. He represents people accused of DUI throughout San Bernardino County.

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