Attacking the Blood Test

It is widely believed that DUI blood testing is more reliable and scientifically accurate than breath testing for blood alcohol concentration. However, that is not necessarily true. In fact, DUI blood testing is fraught with all kinds of errors and, therefore, actually more amenable to being challenged successfully. Contamination of your blood sample, fermented blood and blood samples that were erroneously switched are only a few examples of how bungled blood testing can result in an innocent person being convicted of DUI. Our highly-credentialed and experienced Torrance DUI defense attorneys are extremely knowledgeable in recognizing these errors and employing them in our strategy to get your DUI case dismissed or reduced.

What procedural safeguards does California have with respect to blood testing?

The California legislature has implemented certain procedures and requirements (by which law enforcement – and medical staff employed by law enforcement – must abide) which are essentially safeguards against error and contamination of DUI blood samples. These are codified in California Code of Regulations, Title 17. Such examples include, but are not limited to, the following:

  • making sure a qualified technician drew the blood;
  • sterilization of your arm (or other draw site) with a product that is not alcohol-based (to prevent the addition of alcohol extraneous to that which may be contained in the blood. The presence of foreign alcohol can lead to artificially high blood alcohol results);
  • ensuring that there are appropriate levels of preservatives and anti-clotting solution contained in the vial that holds your blood sample (in order to stave off coagulation);
  • proper mixture of your blood sample with the adequate quantity of anti-coagulant and preservative;
  • proper storage of the blood sample
  • ensuring that the chain of custody of your blood sample is properly documented and unperturbed. The chain of custody is the information as to who handled and otherwise had access to your blood sample.

Should any of the foregoing procedures be violated or otherwise not stringently abided by, the accuracy of your DUI blood test results could be jeopardized and called into question by a qualified, aggressive and highly-conscientious Torrance, California DUI defense lawyer. If we find that your blood sample was similarly tampered with, Ernenwein & Johnson will prepare, submit and argue the appropriate legal motion(s) to have your blood sample “suppressed” (i.e., thrown out) so that it cannot be considered into evidence. As your South Bay DUI defense lawyer, we will also assail the validity of the actual blood test result in pursuit of an all-out dismissal of your DUI charges.

How does California’s implied consent law affect law enforcement’s ability to draw blood forcibly?

If you are licensed to drive in the state of California, you implicitly agreed to allow law enforcement medical personnel draw your blood in order to have it tested for DUI purposes. (Of course, you must lawfully have been arrested for DUI). This is what is known as California’s “Implied Consent Law.”

Therefore, if you refuse to have your blood drawn for DUI chemical testing purposes, you will suffer either of the following consequences:

a) the arresting officer will annotate in his police report that you refused the blood test, subjecting to you a one-year driver’s license suspension by the DMV, or;

b) the arresting officer (or as many officers as necessary) will physically restrain you in order to facilitate the compulsory drawing of your blood.

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. A hasty or otherwise abrupt blood draw is a breeding ground for poorly-followed protocol that could result in an innocent client being convicted of DUI.

As your South Bay DUI defense lawyer, Ernenwein & Johnson can petition the judge to order that your blood be re-tested at an independent laboratory. Oftentimes, new testing will reveal contamination or reveal that your blood alcohol concentration was not as high as alleged by law enforcement. This is one of the reasons that blood testing is preferable to breath testing: it is evidence that can be re-tested, therefore, oftentimes leading to a reassessment of your case that can result in reduced or dismissed DUI charges.

It should be noted that the police officer must have advised you of your right to have your blood sample preserved for retesting in the future. We will have your blood subjected to new testing by petitioning the judge to sign an Order for Specimen Release, commonly known as a “blood split.” If the independent laboratory’s evaluation shows that your blood sample was fermented or coagulated, this may be the source of an inaccurate blood result, allowing us to argue for the dismissal of your California DUI charge.

If you’ve been charged with DUI, Ernenwein & Johnson can help. As former Los Angeles District Deputy Attorneys, we will use our knowledge of how prosecution views DUI cases and our 40+ years of experience as criminal defense attorneys to help get your DUI charges reduced.