The DUI Blood Test
The “Voluntary” Breath Test
Most police agencies will use a breath test as part of their investigation—called a preliminary alcohol screening test or “PAS” test. This is a “voluntary” breath test. However, once you’ve been arrested for DUI, you must take either an “evidentiary” breath test or a blood test.
The Blood Test is Most Accurate
The blood test is by far the most accurate test to determine someone’s blood-alcohol level. Despite its accuracy, the blood test can only tell what a person’s blood-alcohol level was at the time of taking the test, and not at the time of driving which has usually occurred over an hour before the test.
The “Rising Defense”
Thus, if some or all of the alcohol you drank was still in your stomach when you were driving, it was probably in your bloodstream when you took the blood test. In that case, your blood-alcohol level may have been below the legal limit at the time of driving but over the legal limit at the time you took the blood test. If so, you may be entitled to a dismissal or a not guilty verdict. This is called a “rising” defense because your blood-alcohol level was rising at the time of driving. If your DUI lawyer can present forensic evidence to support a rising defense, they may be able to get your case dismissed or a reduction of charge.
You MUST be Given a Choice
You must be given the choice of a blood or breath test after you are arrested for DUI. Failure to give you a choice of tests is a violation of your Constitutional right to be free from an unreasonable search. This means that if you weren’t given a choice, the blood test result was illegally obtained and must be suppressed or thrown out.
Challenging The Validity of the DUI Blood Test (Title 17)
A blood test administered after a DUI arrest must be conducted in strict accordance with the rigid standards of Title 17 of the California Code of Regulations. Title 17 mandates who can administer a blood test as well as how the sample is to be drawn, treated, identified, transported, and tested. Any violation of Title 17 provides grounds to move to have the blood evidence suppressed. The following are examples of Title 17 violations that can lead to suppression of blood evidence:
- Blood not treated with sufficient anticoagulant
- Blood not treated timely with sufficient preservative. Natural fermentation of blood produces alcohol and compromises the blood test
- Insufficient chain-of-custody. Samples may have been mixed up on a busy night or the sample wasn’t marked properly
- Blood technician not qualified or qualifications expired
- Contamination of the blood sample due to swabbing skin with ethyl alcohol
- Sample stored at improper temperature
- Testing machine not calibrated or properly maintained
- Sample not of sufficient amount.
The blood test results are often critical in a drunk driving case for both proving a violation of California Vehicle Code Section 23152(b) in court and as evidence at the Administrative Per Se DMV Hearing. Therefore, it’s imperative to look very closely at the blood-test procedures and find out if Title 17 was strictly followed.
The smallest mistake could make all the difference in your case. At The Law Office of EJ Stopyro we work with leading experts in Forensic Toxicology, including a former supervisor of the Orange County Forensics Alcohol Lab. No mistake will go unnoticed!
To find out if your blood test was performed in strict compliance with Title 17 it is important to hire an experienced and skilled Orange County DUI lawyer. Call The Law Office of EJ Stopyro today at (949) 559-5500 for a free telephonic consultation.