In fact, in situations where a defendant has been pulled over for a DUI and submitted a blood test our firm has had situations with 0.0 BAC result returned from our independant lab.
Lets get started….
What is a Blood Split Order?
In circumstances where blood has been drawn in a DUI case, the technician who drew the blood is required to provide two separate vials or containers for testing by law enforcement and the defense.
How Do You Get The Blood Split Order Enforced?
You or your DUI attorney can request that the court having jurisdiction over the matter issue an order to release the blood split to your independent crime lab for testing.
What Are Some Situations Where a Blood Split Should be Ordered?
Your attorney might consider requesting a blood split from the prosecution in any case where blood has been drawn as evidence of your BAC.
If your BAC is at least 0.08% under VC 23152(b), there is a legal but rebuttable presumption that you were under the influence of alcohol1. If unrebutted, your driver’s license will be suspended and you will be subject to criminal prosecution.
Your Attorney Should Order A Blood Split If:
- Your BAC test result is 0.08%
- Your BAC test result is between 0.09% to 0.11%
- You are facing felony charges for DUI with fatality or serious injury
- Your BAC is highly elevated in the face of evidence to the contrary so that the result is doubtful
- You believe that the phlebotomist or person that performed the blood draw did not use a non-alcohol based cleaning solvent
Why You Should Order A Blood Split When Your BAC is Highly Elevated
If your BAC is highly elevated such as over .015% and you have no other indicia of intoxication, then testing of the blood sample is essential.
For instance, if you displayed no signs of intoxication such as slurred speech, confusion, or lack of balance, then an independent test of your preserved blood could reveal that it was contaminated, misidentified, or was administered in a manner inconsistent with statutory regulations.
Can You Use of Blood Split in a DMV Hearing?
In a DUI matter, the Per Se Administrative or DMV Hearing is for the sole purpose of determining if your driver’s license should be suspended. If you took a breath or blood test and your BAC is at least 0.08%, this will result in a suspension unless you can show credible evidence to the contrary.
The Standard of Proof In DMV Hearings Is Lower Than Criminal Cases
Was The Blood Test Result Properly Obtained?
Under California law it is presumed that the blood test results were properly obtained so that the prosecution need not do anything but present the results.
Once the test results are presented or entered into evidence, it is up to you or your attorney to rebut the presumption of your being under the influence as indicated by your BAC and to present credible evidence that the blood test results were inaccurate or were not properly administered.
A Blood Split Can Provide Evidence To Rebut The Prosecution
One way of doing accomplishing this is to order the blood split and to have it tested by a lab of your choice. If the results indicate a result of less than 0.08%, then your attorney can present this as rebuttable evidence.
However, since you have the burden of rebutting the presumption of intoxication, your attorney should at least attack the prosecution’s test results. Any breath or blood test must be conducted in accordance with Title 17 that governs how such tests are to be administered.
- A certified technician or medical professional must have drawn your blood as soon as possible after your arrest.
- The draw site must be sterilized with something other than an alcohol-based material
- The vial containing the blood must have an anticoagulant and preservative to prevent contamination or clotting
- The equipment used must not have been cleaned before the test with alcohol or other volatile organic solvents
- The chain of custody must be established so that the identity and integrity of the sample is recorded—multiple people may be involved in the chain of custody
Title 17 Violations Will Not Make The Blood Tests Inadmissable
Be aware, though, that simply because you can prove that the technician or medical professional who drew the blood was in violation of any of these regulations, it does not automatically render the BAC results inadmissible at a DMV hearing or a criminal proceeding3.
Although the court can give a jury instruction about the Title 17 violation, it only goes to the weight of the evidence and not its admissibility4.
Can A Title 17 Violation Influence The DMV Hearing Officers Decision?
A title 17 violation may be enough to persuade the DMV officer or judge presiding over the DMV hearing to find that the results are not credible and allow you to retain your driver’s license.
Can a Blood Split be Harmful to a Defendant?
A blood split is never harmful because you are under no requirement to present the test results to the prosecution.
Can a Blood Split Help in a DUI Drug Case?
If you have been charged with a DUI drug charge such as
A blood test was likely requested from you since a breathalyzer cannot detect the presence of a drug other than alcohol in your system. In these cases, the arresting officer may have felt that you exhibited signs of being under the influence of a drug such as marijuana, cocaine, or other controlled substances.. Many officers are trained in the administration of field sobriety tests which are purported to indicate the presence of a drug in your system.
Blood Tests Do Not Have Specific Limit For Determining Being Under The Influence Of Drugs
California does not have any legal limit, such as the 0.08% limit for alcohol, wherein if a certain amount of a drug is detected in your blood, then you are presumed to be under the influence. However, if a certain drug is detected, then the arresting officer might, with any other available evidence, conclude that you were under the influence and determine that there was probable cause to arrest you for DUI.
This might include your driving pattern, inability to understand instructions, poor performance on field sobriety tests, slurred speech, or bloodshot eyes.
There May Be Other Reasons For Appearing To Be Under The Influence
All of these alleged indications of being under the influence of drugs ((Vehicle Code 23152(f).)) do have other causes such as a medical condition, fatigue, anxiety, a physical disability, or other external factors.
A prosecutor has the burden of proving that you were under the influence by presenting evidence that shows that..” the drug must have so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties”5.
Further, by ordering the blood split and having it tested, you might be able to demonstrate any of the following:
- There was fermentation in the blood
- The sample was contaminated
- The blood sample was not yours
- The prosecution test did not provide a qualitative test (how much of the drug was in your system)
- A different drug was detected than the one allegedly found in the prosecution test
A qualitative test may be able to show you had a minute amount of the drug in question in your system. If so, your attorney can argue that such a trace amount was highly unlikely to had any affect on you or caused you to be impaired at the time you were driving.
What If The Drug Found On The Test Was Legally Prescribed?
If the drug was a legally prescribed medication, then you can argue that you routinely have some of the drug in your system.
Marijuana In Your Blood Will Not Prove Intoxication
If marijuana was found in your system, it is not enough to show that you were under the influence of marijuana without other signs of impairment since chemical tests for THC, the substance in marijuana that causes the “high,” are not necessarily indicative of impairment. In addition, the latent metabolite of THC, Carboxy-THC, can remain in your system for several weeks.
Likewise, cocaine can be detectable for a few days after it has been ingested in some manner, long after the effects have worn off. Consequently, these tests cannot reliably show when the drug was taken, how much was taken, or how much can lead to impairment.
Important DUI Information
- The 3 Stages Of A Misdemeanor DUI Court Process
- Field Sobriety Tests: What Police Don’t Want You To Know
- 13 Examples Of Lack Of Probable Cause For A DUI Stop
- How To Expunge A DUI Conviction
Next Steps If You Need Help
If you have been arrested and would like to learn more about how much DUI attorneys cost.
If you want to understand why its important to have an attorney represent you.
If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-334-6855 for a free confidential consultation.