Much of a DUI case hinges around the Blood Alcohol level. There are two distinct methods for obtaining these levels, a breath test, or a blood test.
IMPLIED CONSENT TO A BREATH OR BLOOD TEST
The State of California will claim that chemical test evidence which was obtained without a warrant is admissible solely because you gave implied consent to such testing, however there must be compliance with CVC §23612, the statute which creates implied consent, to support the claim. CVC §23612 starts out, any 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 any offense allegedly committed in violation of Section 23140 (Zero Tolerance), 23152 (DUI), or 23153 (Felony DUI)…., the statute further states 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….
PRELIMINARY ALCOHOL SCREENING (PAS) DEVICE
One breath test generally used on the street during the stop is known as the preliminary alcohol screening (PAS) device test. Generally, it is given in conjunction with field sobriety tests. The preliminary alcohol screening (PAS) is not the test required under implied consent.
California Vehicle Code §23612 (h) defines a preliminary alcohol screening test, and a device that indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving a vehicle in violation of Section 23140 (Zero Tolerance), 23152 (DUI), or 23153 (Felony DUI) is a field sobriety test and may be used by an officer as a further investigative tool.
If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. The person’s obligation to submit to a blood, breath, or urine test, as required by this section, for the purpose of determining the alcohol or drug content of that person’s blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the person’s right to refuse to take the preliminary alcohol screening test.
If the officer decides to use a preliminary alcohol screening device, the officer shall advise you that he or she is requesting that you take a preliminary alcohol screening test to assist the officer in determining if you are under the influence of alcohol or drugs, or a combination of alcohol and drugs. Your obligation to later submit to a blood, or breath test for the purpose of determining the alcohol or drug content of your blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the person’s right to refuse to take the preliminary alcohol screening test.
A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the 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.
CHEMICAL TEST/ BREATH
The California Code of Regulations, Title 17 sets forth the standards and requirements for testing breath to determine blood alcohol, the evidentiary test.
The California Code of Regulations, Title 17 §1219.3 provides a breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the 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.
STANDARDS OF PROCEDURE
The California Code of Regulations Title 17 §1221.4 provides for the following standard of procedure.
For each person tested, breath alcohol analysis shall include analysis of 2 separate breath samples which result in determinations of blood alcohol concentrations which do not differ from each other by more than 0.02 grams per 100 milliliters.
ACCURACY
Determination of accuracy shall consist, at a minimum, of periodic analysis of a reference sample of known alcohol concentration within accuracy and precision limits of plus or minus 0.01 grams % of the true value; these limits shall be applied to alcohol concentrations from 0.10 to 0.30 grams %. The reference sample shall be provided by a forensic alcohol laboratory. 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.
Breath alcohol analysis shall be performed only with instruments for which the operators have received training, such training to include at minimum the following schedule of subjects:
(A) Theory of operation;
(B) Detailed procedure of operation;
(C) Practical experience;
(D) Precautionary checklist;
(E) Written and/or practical examination.
CHEMICAL TEST/ BLOOD
California Vehicle Code §23158 provides that only a licensed physician and surgeon, registered nurse, licensed vocational nurse, duly licensed clinical laboratory scientist or clinical laboratory bio analyst, a person who has been issued a “certified phlebotomy technician” at the request of a peace officer may withdraw blood for the purpose of determining the alcoholic content therein.
- Blood samples shall be collected by venipuncture as soon as feasible after an alleged offense and only by persons authorized. Sufficient blood shall be collected to permit duplicate determinations.
- 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.
- Blood samples shall be collected using sterile, dry hypodermic needles and syringes, or using clean, dry vacuum type containers with sterile needles.
- The blood sample shall be deposited into a clean, dry container which is closed with an inert stopper.
- The blood shall be mixed with an anticoagulant and a preservative.
- All analytical results shall be expressed in terms of the alcohol concentration in blood, based on the number of grams of alcohol per 100 milliliters of blood.
California Code of Regulations Title 17 §1219.1 also provides for the blood collection and retention in a DUI case:
- 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.
- Sufficient blood shall be collected to permit duplicate determinations.
- 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.
- 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.
- The blood sample shall be deposited into a clean, dry container which is closed with an inert stopper.
- Alcohol or other volatile organic solvent shall not be used to clean the container.
- The blood shall be mixed with an anticoagulant and a preservative.
FACING YOUR DUI CHARGE, BREATH and/or BLOOD TESTS
There are so many complexities to a DUI charge, from the various tests that a police officer will try to administer, to the possible arrest itself, to the blood and/or breath tests.
If you are facing a DUI, you should find a dui lawyer, the best dui lawyer.
Kenneth M. Hallum is a Santa Barbara attorney handling DUI cases exclusively and can answer your drunk driving questions, questions about the dui arrest report, whether dui reckless driving is an alternative or option, whether a driver’s license suspension, or a dui suspension can be avoided, or the specifics of a dui trial. There are many issues Santa Barbara DUI lawyers must address. Facing a DUI alone is not an option you want to take. There are serious ramifications to dealing with the legal system that will impact your life if not handled correctly. It is best to obtain the services of a highly experienced DUI defense attorney to handle the proceedings for you.
Each case is unique with an individual set of facts, mistakes, and legal arguments, and most important each case has a unique individual component – YOU.
When the evidence “seems” overwhelming, that is when you need a DUI attorney dedicated to DUI defense in order to make sure that every possible issue and defense is explored! Trials can be won, and cases can be dismissed, and Attorney Kenneth M. Hallum is dedicated to that goal. With an extensive law enforcement background he is a best bet for a strong and aggressive DUI defense lawyer.
Contact Kenneth M. Hallum; Know your Rights, Options, and Defenses.