Title 17 of the California Code of Regulations sets forth a number of rules about how the government must conduct
These chemical tests are usually used by the prosecutor to support charges of Vehicle Code 23152(b) VC driving under the influence with a BAC of 0.08% or greater. But if the police failed to comply with Title 17, the prosecution may not be able to use the test results as evidence.
This means that Title 17 violations can be the cornerstone of a successful DUI defense strategy. Challenging Title 17 violations in a DUI case can result in acquittal at trial, a successful plea bargain to lesser charges--or even the outright dismissal of the DUI charges.
Below, our California DUI defense attorneys answer the following frequently asked questions about Title 17 and California DUI cases:
- 1. What Are the Title 17 Regulations Regarding DUI Blood Tests?
- 2. What Are the Title 17 Regulations Regarding DUI Breath Tests?
- 3. What Are the Title 17 Regulations Regarding DUI Urine Tests?
- 4. What Can I Do If There Was a Title 17 Violation in My DUI Case?
If you have further questions, we invite you to contact us at Shouse Law Group.
Some of the most important Title 17 requirements for DUI blood tests in California are:
- An authorized technician must perform the blood draw,
- An alcohol-based cleaning agent must not be used to sterilize the draw site,
- There must be a sufficient amount of anticoagulant and 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 readings of blood alcohol concentration (BAC)),
- The anticoagulant or preservative in the vial must not be expired,
- The anticoagulant and preservative must be sufficiently mixed with the sample, and
- The blood sample must be properly stored.2
Experts believe that DUI blood tests are the most reliable of the three California chemical DUI tests. But a Title 17 violation still leaves the BAC open to attack.
As Van Nuys DUI defense attorney John Murray explains3,
"Blood test results are by no means 100% accurate. Any Title 17 violation can indicate that the BAC results are inaccurate. As a result, a skilled DUI lawyer can often have test results excluded from evidence."
Title 17 also stipulates rules and procedures for DUI breath tests. These include the following requirements:
- that the breath sample come 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 it to falsely register a high BAC.
Example: Tonya suffers from the condition known as GERD (a type of acid reflux). One night she is pulled over for DUI after having a beer with friends. She is not particularly intoxicated, but she is sleep-deprived, which causes her to fail a field sobriety test and be arrested for DUI.
At the police station Tonya takes a DUI breath test. The officer administering the test is required under Title 17 to observe her for 15 minutes before the test, but really he just sits in the same room with her and fills out some paperwork.
During these 15 minutes Tonya burps several times. Because of her GERD, this causes alcohol from her stomach to enter her mouth. As a result the breath test shows a higher BAC than she actually has.
Tonya and her DUI defense attorney can challenge the results of this test by pointing out that the officer failed to follow Title 17's rule about 15 minutes of continuous observation--and that as a result GERD/mouth alcohol led to a false breath test result.
Another significant Title 17 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.
Urine tests are much less common that DUI blood or breath tests. They are usually given only if a blood or breath test is unavailable for some reason, or if the defendant is suspected of driving under the influence of drugs or a combination of drugs and alcohol.5
Under 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.
Title 17 also requires that your urine sample (and your blood sample, for that matter) be retained for one year so that you may have it retested at a later time by an independent laboratory.7
If DUI chemical test results are part of the evidence against you, then an experienced California DUI defense attorney will investigate the possibility of a Title 17 violation that could help discredit these results.
A Title 17 violation could indicate that the BAC results are inaccurate--and thus could result in:
- The prosecutor agreeing to a plea bargain to a lesser charge such as "wet reckless" or "dry reckless";
- A jury returning a not-guilty verdict for the defendant at trial; or
- The prosecutor agreeing to dismiss the charges altogether.
If you took a blood or urine test, your attorney will want to make a "blood split motion." A blood split motion is a request that the prosecutor hand over the remaining portion of the defendant's blood or urine sample so the defense team can have it re-tested at an independent laboratory.8
Even if a blood split re-test doesn't show a lower BAC than that alleged by the prosecutor, a blood or urine re-test can show that a Title 17 violation occurred.
Example: Jose is charged with DUI after a DUI blood test indicates that he was driving with a BAC of 0.10%. But his defense attorney requests a blood split and tests the sample independently.
This test reveals that Jose's blood sample was not mixed with sufficient preservative. This Title 17 violation could have caused the blood to ferment in the vial and artificially inflated the test results.
Armed with evidence of a Title 17 violation, Jose's defense attorney is able to secure him a plea bargain to the lesser charge of "dry reckless."
Call us for help . . .
If you or a loved one is charged with DUI and would like to know more about Title 17 violations, we invite you to contact us at Shouse Law Group.
We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
- Title 17 of the California Code of Regulations ("Title 17"), sections 1215-1221 [pertaining to DUI chemical testing].
- Title 17, 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 Title 17, 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.")
- Van Nuys DUI Defense Attorney John Murray is a leading expert in California DUI defense strategy, including the role of Title 17 violations in an effective DUI defense. He has extensive experience both in the court systems of Los Angeles County and Ventura County and in California DMV hearings.
- Title 17, 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 Title 17, 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.")
- Vehicle Code 23612 VC -- Implied consent for chemical testing [to which Title 17 will apply].
- Title 17, section 1219.2 -- 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.")
- See Title 17, section 1219.1 -- Blood Collection and Retention, endnote 2 above. ("(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 Title 17, section 1219.2 -- Urine Collection and Retention, endnote 6 above. ("(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.")
- Vehicle Code 23158(b) VC -- Right of DUI defendant to make a blood split motion [which could help uncover or prove a Title 17 violation].