A charge under violating California Vehicle Code § 23152(a) (driving while under the influence of alcohol) or violating California Vehicle Code § 23152(b) (driving with a blood alcohol content (BAC) of .08 or higher) may carry serious consequences for any California motorist. The prosecution will heavily rely on any tests taken by law enforcement personnel that establish a BAC of .08 or above. An experienced criminal defense attorney can help prove your innocence for these crimes by attacking the validity of such tests.
When law enforcement personnel make a traffic stop and suspect that a motorist is intoxicated in violation of California law, they may conduct specific tests to determine if a motorist is intoxicated. Title 17 of the California Code of Regulations regulates these tests. Title 17 requires specific procedures and safeguards that, if ignored, may result in a contaminated, unreliable, and tainted sample, thus reducing the integrity and credibility of any evidence that the prosecution may use to achieve a conviction.
Title 17 states:
Samples taken for forensic alcohol analysis shall be collected and handled in a manner in which the identity and integrity of the samples shall be maintained through collection to analysis and reporting.
*Blood Test Requirements
- Alcohol or any other volatile organic disinfectant may not be used to clean the skin where a specimen is to be collected.
- Blood samples from living individuals must be collected using sterile, dry hypodermic needles and syringes, or using clean, dry vacuum type containers with sterile needles.
- Reusable equipment, if used, must not be cleaned with or kept in alcohol or other volatile organic solvents.
- The blood sample must be deposited into a clean, dry container which is closed with an inert stopper.
- Alcohol or any other volatile organic solvent may not be used to clean the container.
- The blood must be mixed with an anticoagulant and a preservative.
- There are also requirements for blood samples collected post-mortem.
*Breath Test Requirements
- An individual who is administered a breath test must be placed under continuous observation for at least fifteen minutes before collection of the breath sample.
- During the fifteen-minute observation period, the individual may not eat, drink, smoke, vomit, or regurgitate.
- The breath sample must derive from deep lung air.
- The breath-testing instrument must be calibrated every ten days or 150 uses, whichever occurs first.
*Urine Test Requirements
A urine sample from a living individual must be a sample collected no sooner than twenty minutes after first voiding the bladder. The specimen must be deposited in a clean, dry container that also contains a preservative. Also, to allow for analysis by the defendant, the remaining portion of the sample must be retained for one year after the date of collection.
Challenges to potential Title 17 violations are a crucial component of a defense strategy in a DUI case. These challenges may result in an acquittal, a plea bargain to reduced charges, or the dismissal of all DUI charges. The prosecution must prove beyond a reasonable doubt that law enforcement complied with any blood, breath, or urine collection requirements. If it cannot meet this burden of proof because the underlying forensic evidence is compromised, it may cause a favorable result for the accused.
John Patrick Dolan is a California State Bar Certified Specialist in Criminal Law, the highest achievement awarded by the State Bar of California to attorneys in the field of criminal law. The advice, guidance, and representation of experienced criminal defense counsel may be crucial to achieving the best possible result in any criminal matter. John Patrick Dolan has forty years of criminal defense experience. Contact Dolan Law Offices today at 760-775-3739 or 562-824-4007 to discuss your situation or find out more online here.
