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    DUI Defense Division

    “Blood Split Motion” – Can it help me win my DUI case?

    California law permits you to obtain part of your DUI blood test sample for independent testing. To do this, you file a “blood split” motion.

    So-called “blood splits” are authorized under Title 17 of the California Code of Regulations (“CCR”).1 (Title 17 also authorizes a “urine split” in the rare case you take a DUI urine test.)2

    To help you better understand “blood split” motions, our California DUI defense lawyers discuss, below:

    1. What is a blood split?

    “Blood split” refers to California’s practice of splitting DUI blood samples into two containers. One is used for law enforcement testing of your blood alcohol concentration (“BAC”). The other is saved in case you want to have your blood independently retested.3

    This only applies if you elected to (or were required to) take a blood test.4 Many drivers elect to give a breath sample, which cannot be saved. This is the major advantage of choosing a blood test over a breath test after a drunk driving arrest.

    When Blood Tests Are Required

    You are required to take a blood test when:

    • The officer has a reasonable suspicion that you are driving under the influence of drugs (“DUID”)5;
    • A breath testing machine is not available;6 or
    • You are unable to complete a breath test (for example, due to a medical condition or because you are unconscious or deceased).7

    If you are medically unable to take a blood test, you are exempted from this requirement.8 You can be forced to take a blood test against your will only if the police get a warrant.9

    Note there are penalties for a chemical test refusal in California such as a one-year driver’s license suspension.

    2. How Blood Splits Fight DUIs

    Blood split motions can help fight DUI charges by casting doubt on the accuracy of chemical test results.

    Chemical test results obtained by law enforcement are presumed to be accurate. So the burden is on you to show they are not.10

    “Per Se” DUI Cases

    California’s “per se” DUI laws punish you for driving with a BAC of 0.08% or higher. Therefore, a blood split test that shows a BAC below 0.08% may create “reasonable doubt.”

    The most common “per se” drunk driving charge is Vehicle Code 23152(b) – driving with a BAC of 0.08% or higher. Other California “DUI per se” laws include:

    “Under the Influence” DUI Cases

    Blood splits can also be helpful to fight DUI charges not based on a “legal limit” for alcohol or drugs. Charges of this type include:

    With these charges, the prosecutor must prove your driving was actually impaired by alcohol and/or drugs. Typical evidence includes bad driving or poor performance on field sobriety tests.11

    If your blood split shows a discrepancy with the original sample, it can be enough to discredit the prosecution’s argument that you were under the influence. Perhaps. for example, you were suffering from a medical condition like a:

    • diabetic coma or
    • seizure.12
    hand holding a lit marijuana joint

    A blood split independently verifies a DUI blood test’s accuracy.

    How Blood Splits Reveal Police Misconduct

    A blood split motion can help uncover “Title 17” violations that can be used to fight California DUI charges. Title 17 regulations that are commonly broken include:

    • Collection of the sample must occur as soon as possible after the alleged offense.
    • Blood must be collected by an authorized technician or medical professional.
    • Enough must be collected to allow a blood split.
    • The blood must not be contaminated with alcohol from other sources (for instance, from alcohol-based disinfectants ).
    • The vial must have sufficient anticoagulant and preservative.13

    Sometimes blood splits even reveal that your sample was mistakenly switched with someone else’s!

    3. Are there breath splits?

    No. California law enforcement agencies are not required to retain breath samples in DUI cases.14

    Police officers are supposed to tell you that your breath sample will not be retained for retesting. This way you can make an informed decision when deciding between taking a breath- or blood test.15

    Note that there are many ways to fight breath testing results without an independent sample. For example, perhaps the breathalyzer was not calibrated correctly, or perhaps the person who calibrated the breathalyzer let their certification lapse.

    4. Are there urine splits?

    Yes. Urine samples (if any) collected in driving under the influence cases must be retained for independent testing. 16 Other requirements for urine tests under Title 17 include:

    • Collection of the sample no sooner than 20 minutes after you first emptied your bladder.
    • Collection of enough urine so that the sample may be tested at least twice.
    • Retention of the sample for up to one year after it is collected so that a portion can be provided to you upon request (the equivalent of a blood split).17

    Note that in most cases (as discussed in Section 1, above), you must take a breath or a blood test. Urine tests are used in DUI cases only when:

    • other tests are not available or
    • you are medically unable to take another test.18
    lab tech holding a container of urine specimen

    “Blood split” motions can also be used for retesting DUI urine samples (but not breath samples).

    5. Blood Split Motions

    A “blood split” motion begins with your lawyer informally asking the prosecutor for a portion of the sample. The prosecutor will usually agree to this request. 19

    If the prosecutor refuses or fails to turn over the blood or urine split within 15 days, the court can order the prosecutor to do so.20

    The court may also discipline a prosecutor for failing to turn over the split. This discipline may include:

    • Contempt proceedings against the prosecutor,
    • Informing the jury of the delay, or
    • Preventing the prosecutor from using the results of the chemical test at trial.21

    Note there is no penalty for obtaining a blood split and not having it tested. However, whether or not you get the sample retested, the prosecutor may introduce the original result at trial.

    6. Can blood splits hurt my defense?

    No. It is true that a blood split might return results that do not help you. For instance, independent testing may confirm the accuracy of the original test. Or it might even show a higher BAC than the police lab reported.

    However, the new results obtained from the blood split are your evidence. Unlike the prosecution, you do not have to disclose evidence that is favorable to the other side.23

    In short, a blood split motion might not help your defense, but it cannot hurt it either.

    Additional Reading

    For more in-depth information, refer to these scholarly articles:

    Legal References:

    1. 17 California Code of Regulations (“CCR”) 1219.1(f). 17 CCR 1219.1 provides:“(a) Blood samples shall be collected by venipuncture from living individuals as soon as feasible after an alleged offense and processed in compliance with Vehicle Code Section 23158. (b) Alcohol or other volatile organic disinfectant shall not be used to clean the skin where a specimen is to be collected. Examples of suitable aqueous disinfectants include: aqueous povidine-iodine (Betadine) or aqueous benzalkonium chloride (zephiran chloride).(c) Blood samples from living individuals 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 with or kept in alcohol or other volatile organic solvents.(d) 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.(e) When blood samples for forensic alcohol analysis are collected post- mortem, all practical precautions to ensure an uncontaminated sample shall be employed, such as:(1) Samples shall be obtained prior to the start of any embalming procedure. Blood samples shall not be collected from the circulatory system effluent during arterial injection of embalming fluid.(2) Care shall be taken to avoid contamination by alcohol from the gastrointestinal tract directly or by diffusion. The sample shall be taken from a major vein or the heart.(3) Postmortem blood samples shall be mixed with an anticoagulant and preservative.(f) In order to allow for analysis by the defendant, the remaining portion of the sample shall be retained for one year after the date of collection.(1) In coroner/medical examiner cases, samples shall be retained for at least 90 days after date of collection.(2) Whenever a sample is requested by the defendant for analysis and sufficient sample remains, the forensic laboratory, law enforcement agency, or coroner/medical examiner’s office in possession of the original sample shall continue such possession, but shall provide the defendant with a portion of the remaining sample in a clean container together with a copy or transcript of the identifying information carried on the original sample container.”
    2. California Vehicle Code 23612(a)(2)(A): “If the person is lawfully arrested for driving under the influence of an alcoholic beverage, the person has the choice of whether the test shall be of his or her blood or breath and the officer shall advise the person that he or she has that choice. If the person arrested either is incapable, or states that he or she is incapable, of completing the chosen test, the person shall submit to the remaining test. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) [urine test] applies.”See also Vehicle Code 23612(a)(2) (C): “A person who chooses to submit to a breath test may also be requested to submit to a blood test if the officer has reasonable cause to believe that the person was driving under the influence of a drug or the combined influence of an alcoholic beverage and a drug and if the officer has a clear indication that a blood test will reveal evidence of the person being under the influence. The officer shall state in his or her report the facts upon which that belief and that clear indication are based. The officer shall advise the person that he or she is required to submit to an additional test. The person shall submit to and complete a blood test. If the person arrested is incapable of completing the blood test, the person shall submit to and complete a urine test.”See also Vehicle Code 23612 (b): “A person who is afflicted with hemophilia is exempt from the blood test required by this section, but shall submit to, and complete, a urine test.”See also Vehicle Code 23612 (c): “A person who is afflicted with a heart condition and is using an anticoagulant under the direction of a licensed physician and surgeon is exempt from the blood test required by this section, but shall submit to, and complete, a urine test.”
    3. 17 California CCR 1219.1(f)(2).
    4. Vehicle Code 23612(a)(2)(A), endnote **.
    5. Vehicle Code 23612(a)(2) (C), endnote **.See also Vehicle Code 23152(f) – Driving under the influence of drugs.
    6. Vehicle Code 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.… (d)…(2): “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.”See also Vehicle Code 23612 (a)(3): “If the person is lawfully arrested for an offense allegedly committed in violation of Section 23140 [underage DUI], 23152 [DUI], or 23153 [DUI causing injury], and, because of the need for medical treatment, the person is first transported to a medical facility where it is not feasible to administer a particular test of, or to obtain a particular sample of, the person’s blood or breath, the person has the choice of those tests, including a urine test, that are available at the facility to which that person has been transported. In that case, the officer shall advise the person of those tests that are available at the medical facility and that the person’s choice is limited to those tests that are available.”
    7. Vehicle Code 23612 (a)(5): “A person who is unconscious or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn his or her consent and a test or tests may be administered whether or not the person is told that his or her failure to submit to, or the noncompletion of, the test or tests will result in the suspension or revocation of his or her privilege to operate a motor vehicle. A person who is dead is deemed not to have withdrawn his or her consent and a test or tests may be administered at the direction of a peace officer.”
    8. Vehicle Code 23612 (b) and (c), endnote **.
    9. See Schmerber v. California (1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.
    10. See Coffey v. Shiamoto (2015) 60 Cal.4th 1198, 185 Cal.Rptr.3d 538,345 P.3d 896.
    11. California Criminal Jury Instructions (CALCRIM) 2110: “The defendant is charged… with driving under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug] [in violation of Vehicle Code section 23152(a)]. To prove that the defendant is guilty of this crime, the People must prove that:1. The defendant drove a vehicle; AND 2. When (he/she) drove, the defendant was under the influence of(an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug].”
    12. See National Institute on Drug Abuse, “Effects of marijuana – with and without alcohol – on driving performance,” June 23, 2015.
    13. 17 CCR 1219.1, endnote **.
    14. California v. Trombetta (1984) 467 U.S. 479 (holding the failure to retain breath samples does not violate a defendant’s constitutional due process rights – see the piece on Trombetta Motions in California criminal cases).
    15. People v. Mills (1985) 164 Cal.App.3d 652; In re Garinger (1987) 188 Cal.App.3d 1149.
    16. 17 CCR 1219.2: “(a) A urine sample from a living individual 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 sample shall be retained for one year after the date of collection.(1) Whenever a sample is requested by the defendant for analysis and sufficient sample remains, the forensic laboratory, law enforcement agency, or coroner/medical examiner’s office in possession of the original sample shall continue such possession, but shall provide the defendant with a portion of the remaining sample in a clean container together with a copy or transcript of the identifying information carried on the original sample container.
    17. Same. ** 17 CCR 1219.2
    18. Vehicle Code 23612 (b) and (c), endnote **.
    19. California law requires prosecutors to disclose all evidence obtained in a criminal investigation to the defendant(s). See Penal Code 1054.1(c) and Penal Code 1054.5(b).
    20. Penal Code 1054.5(b) PC.
    21. Same. ** Penal Code 1054.5(b) PC
    22. This is allowed by Vehicle Code 23612(a)(2)(C). See endnote 2.
    23. Penal Code 1054.3(a) PC.

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