How Title 17 Violations can Affect the Outcome of Your California DUI Charges

Title 17 of the California Code of Regulations establishes the protocol for how this state will administer, collect, store, and analyze

• California DUI chemical blood tests,



• DUI breath tests, and, when applicable,



• DUI urine tests¹

when used as evidence relating to charges for Vehicle Code 23152(b) driving under the influence with a BAC of 0.08% or greater.

Any failure to comply with Title 17's regulations could result in inaccurately high BAC levels, causing innocent people to be falsely accused of drunk driving.

When successfully challenged by your California DUI defense attorney, these violations of protocol could result in reduced DUI charges, acquittal at trial, or...depending on the severity of the violation...even dismissed DUI charges.

Title 17 and California DUI blood tests

As previously stated, Title 17 sets forth the requirements for California DUI chemical testing. With respect to California DUI blood tests, the most common Title 17 violations include (but are not limited to):

• having an unauthorized technician perform the blood draw,



• using an alcohol-based cleaning agent to sterilize the draw site,



• having an insufficient amount of anticoagulant or preservative in the blood vial (these are placed in the vial to ensure that the blood sample doesn't clot or ferment, both of which could produce false high BACs),



• using a vial with expired anticoagulant or preservative,



• not properly mixing the blood sample with the anticoagulant and preservative, and/or



• not properly storing the blood sample.²

Although experts believe that DUI blood tests are the most reliable of the three California chemical DUI tests, a Title 17 violation still leaves the BAC open to attack.

As Van Nuys DUI defense attorney Darrell York explains³, "Blood test results are by no means 100% accurate. Errors in the preparation, collection, and storing of the sample frequently occur. As a result, a skilled DUI lawyer can often have inaccurate results excluded from evidence."

Title 17 and California DUI breath tests

With respect to California DUI breath tests, Title 17 requires

• that the breath sample comes from deep lung air (otherwise known as "alveolar air"),



• that the person providing the sample is observed for at least 15 minutes prior to his/her breath sample,



• that during that time, the person doesn't eat, drink, smoke, vomit, or regurgitate, and



• that the breath testing instrument is calibrated every ten days or 150 uses (whichever occurs first).⁴

Title 17 imposes these safeguards to ensure that DUI breath tests are as accurate as possible. One of the most significant problems that arises when these precautions aren't followed is that mouth alcohol may contaminate the breath sample, causing a false high BAC.

Mouth alcohol fools California DUI breath testing instruments by replacing deep lung air with residual alcohol that lingers in the mouth. Although it's true that most mouth alcohol will dissipate during the fifteen minute observation period that Title 17 requires, that's not always the case. For example...

Those who suffer from medical conditions such as GERD (a type of acid reflux) continuously produce mouth alcohol. Because this is a constant process, a person with GERD doesn't necessarily display any physical signs which would be apparent to the officer during the observation period.

This is a critical fact that your DUI attorney will address when fighting a California DUI, because it means that GERD can also cause a false high BAC on a DUI breath test.⁵

Another significant violation that can lead to questionable BAC results relates to the maintenance and operation of the breath testing instrument. If, for example,

• the breath testing machine wasn't properly calibrated, or



• the operator wasn't properly trained on how to operate the specific breath testing instrument, then

the accuracy of your BAC results could have been compromised. If your California DUI defense lawyer suspects that this may be the case, he/she will move to have your BAC results excluded from evidence. At the very least, your attorney will highlight these Title 17 violations to convince the jury that they cannot trust the reported BAC results.

Title 17 and California DUI urine tests

With respect to Title 17, an individual who submits to a California DUI urine test must first void his/her bladder and then provide a urine sample at least 20 minutes later.⁶ A sample taken any earlier than that can scientifically render the test unreliable.

In actuality, the DUI urine test is the most unreliable of the three California DUI chemical tests. Because of this fact, its results are always subject to criticism. In fact...

Taking a DUI urine test is only an option under two circumstances: (1) when, for some reason, neither a blood nor breath test are available, and (2) when you are suspected of driving under the influence of drugs or a combination of drugs and alcohol.⁷

It should be noted that Title 17 requires that your blood or urine sample be retained for one year so that you may have it retested at a later time by an independent laboratory.⁸

If you have additional questions about how Title 17 violations can affect your DUI case, or you would like to confidentially discuss your case with one of our California DUI defense attorneys, please don't hesitate to contact us. We have local DUI law offices in Los Angeles, Riverside, Orange County, San Bernardino, Ventura, San Jose, the San Francisco Bay area, and several nearby cities.

You may also find helpful information in our related articles on How Mouth Alcohol Fools DUI Breath Testing Instruments, DUI Breath Tests, DUI Blood Tests, Vehicle Code 23152b Driving with a BAC of 0.08% or Greater, and Fighting a California DUI.

Legal References:

¹Title 17 of the California Code of Regulations governs public health. Sections 1215-1221 specifically pertain to forensic alcohol analysis as it relates to California DUI chemical testing.

²Title 17 of the California Code of Regulations, section 1219.1 -- Blood Collection and Retention. ("(a) Blood samples shall be collected by venipuncture from living individuals as soon as feasible after an alleged offense and only by persons authorized by Section 13354 of the Vehicle Code. (b) Sufficient blood shall be collected to permit duplicate determinations. (c) Alcohol or other volatile organic disinfectant shall not be used to clean the skin where a specimen is to be collected. Aqueous benzalkonium chloride (zephiran), aqueous merthiolate or other suitable aqueous disinfectant shall be used. (d) [California DUI] Blood samples shall be collected using sterile, dry hypodermic needles and syringes, or using clean, dry vacuum type containers with sterile needles. Reusable equipment, if used, shall not be cleaned or kept in alcohol or other volatile organic solvent. (e) The blood sample shall be deposited into a clean, dry container which is closed with an inert stopper. (1) Alcohol or other volatile organic solvent shall not be used to clean the container. (2) The blood shall be mixed with an anticoagulant and a preservative.") See also section 1219. ("Samples taken for forensic alcohol analysis and breath alcohol analysis shall be collected and handled in a manner approved by the Department. The identity and integrity of the [California DUI blood] samples shall be maintained through collection to analysis and reporting.")

³Van Nuys DUI Defense Attorney Darrell York, a former Glendale Police Officer, uses his invaluable experience to defend clients accused of DUI in Pasadena, Glendale, Burbank, Van Nuys, and Ventura County. Please feel free to contact us for more information about Darrell York's outstanding credentials.

⁴Title 17 of the California Code of Regulations, section 1219.3 -- Breath Collection. ("A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the [California DUI] breath sample shall be established by direct volumetric measurement. The breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked.") See also section 1221.4 -- Standards of procedure. ("(2) The accuracy of [DUI breath testing] instruments shall be determined. (A) Such determination of accuracy shall consist, at a minimum, of periodic analysis of a reference sample of accuracy and precision limits of plus or minimum 0.01 grams % of the true value...(B) For the purposes of such determinations of accuracy, "periodic" means either a period of time not exceeding 10 days or following the testing of every 150 subjects, whichever comes sooner.")

⁵Acid reflux, heartburn, and Gastroesophageal Reflux Disease otherwise known as GERD can result in a false high BAC on a DUI breath test by producing a constant flow of alcohol from the stomach to the mouth. This is the case regardless of whether the individual suffers from one of these medical conditions on a regular basis or even infrequently.

⁶Title 17 of the California Code of Regulations -- Urine Collection and Retention. ("(a) The only approved urine sample shall be a sample collected no sooner than twenty minutes after first voiding the bladder. (b) The specimen shall be deposited in a clean, dry container which also contains a preservative. (c) In order to allow for analysis by the defendant, the remaining portion of the [California DUI urine] sample shall be retained for one year after the date of collection.")

⁷California Vehicle Code 23152 VC -- Driving under the influence. ("It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.") See also California Vehicle Code 23612 -- Implied consent for chemical testing. ("23612. (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 for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies. [Paragraph (2) of subdivision (d) states...]" If a blood or breath test is not available under subparagraph (A) of paragraph (1) of subdivision (a), or under subparagraph (A) of paragraph (2) of subdivision (a), or under paragraph (1) of this subdivision, the person shall submit to the remaining test in order to determine the percent, by weight, of alcohol in the person's blood. If both the blood and breath tests are unavailable, the person shall be deemed to have given his or her consent to chemical testing of his or her urine and shall submit to a urine test. [And...] (B) 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 urine for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.")

⁸See endnote 2, above, subsection "g". ("(g) In order to allow for analysis by the defendant, the remaining portion of the [California DUI blood] sample shall be retained for one year after the date of collection.") See also endnote 4 above, subsection "c". ("(c) In order to allow for analysis by the defendant, the remaining portion of the [California DUI urine] sample shall be retained for one year after the date of collection.")

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