Is There A Health Exemption To Having To Take A Blood Test In A DUI Case In California?
In California, there is a health exemption to having to take a blood test for a DUI. If you have a certain medical condition, and there are very few medical conditions that apply, you should tell the officer. The officer should not be giving you a blood test. If they still do, it’s something that we can challenge procedurally, and it may be a way to win your case.
If you have hemophilia, a heart condition, or taking anti-coagulants, you should let the officer know about your condition. If they make you do a blood test anyway, that is a problem. It is a violation of the law. The court’s stand is that they are required to give you a breath test or a urine test instead. However, a lot of times, they don’t have the proper facility or kit to do a urine test, and it gets really interesting if you refuse to do a chemical test and they know you are a hemophiliac.
I’ve seen this situation happen a few times. You can say that you cannot do a blood test because you are on anti-coagulants. You can tell them that if they are going to do a blood test that it needs to be done in a doctor’s office or hospital. Most smart officers will not continue with the blood test. A lot of different things can happen. It’s not your ordinary DUI case when something like this happens. It leads to a lot of motions, potential non-prosecution, or dismissal of a case. Obviously, it is not a good thing to have hemophilia, a heart condition, or take anti-coagulants. But, it is something that may help fight your DUI case, especially if they still do a blood test.
How Can My DUI Attorney Challenge A Blood Test?
There are a lot of different ways to challenge a blood test. The most important thing for the attorney is to do the investigation and research to see what the possible defenses are to a blood test. In these cases, we would want to get the video of the admonishment, if available, to see if someone was properly admonished as to whether they had a choice of test. We would also want to see if there is any video showing the blood test itself.
Typically, a blood tech, phlebotomist, nurse, or EMT is called in to the police station and take a non-alcoholic swab. Most non-alcoholic swabs, to my understanding, still have at least a little bit of alcohol in them. But most of it is in other material, substance, and/or chemical.
When it comes to blood draws, we are looking to see whether it was done properly. When it relates to swabs, we are looking to see whether Title 17 was complied with. Title 17 regulates breath and blood testing in DUI cases. The phlebotomist has to do a certain number of things, and the officer is usually there doing some of them as well. They need to be wearing gloves to make sure that they don’t contaminate the blood testing area. Thus, we look to see if the blood test was done in a medically approved manner.
We look at the swab that was done and at the tourniquet that’s put up the arm usually before they find the vein and put the needle in. We look at what they are grabbing and touching, and what the area around them looks like. Other ways that we observe this, assuming we get a clean and clear view of what is going on, is to see what happens once the blood has been drawn. The vials that the blood is drawn into needs to have an anti-coagulant, which is a preservative. Usually, it’s sodium fluoride and a certain amount needs to be in there. Sometimes, we can see if it’s in these test tubes. The tubes come inside blood testing box kits in which the powder or anti-coagulant preservative is already included.
Once the samples have been drawn, and it’s inside the test tubes, the tubes need to be inverted back and forth a certain number of times. We also look for that. When a case goes to trial, we want to be able to point out everything that occurred in the testing procedure that could have gone wrong and show any reasonable doubt that exists. Then, we get into the actual testing that’s done once the blood has gone to the lab for testing and the chain of custody. Once those vials have been secured and inverted a number of times, they are packaged up and sent to the lab. Now, in some cases in the San Francisco Bay Area and Marin County, they will stick the box with your blood in the US Mail.
It goes into a mailbox. It’s not specially delivered. Sometimes, especially in summer, the mailboxes will reach over 100 degrees inside and the blood could boil. It’s a pretty archaic method, and it’s something that could be pointed out to a jury. We can talk to the jury about whether that’s something you would trust if it gets heated up like that. Its problematic. It’s not being preserved properly. Bacteria can form in non-conforming situations. So, we look for anything that could cause bacteria in the testing method or in the machine, which is called a chromatogram. A chromatogram is used to test the blood.
We also need to see that the chain of custody was not broken. The chain of custody is critical for the prosecution. For the prosecution, it is required that the blood testing is accurate in order for them to meet their burden in these cases.
At the lab, we get printouts called chromatograms. The printouts are graphs that show peaks that show the different things that the machine is testing for, one of which is alcohol. It will have a certain number of signs, which show its accuracy. Sometimes, we get small peaks that could indicate a contaminant or alcohol. But, that could mean that the machine is not necessarily clean. The copper coils that are in these machines may not be properly clean or may have something in them that is contaminating the sample, which could be your blood.
If that’s going on, that’s problematic. That’s something that could change the actual blood result, which can be pointed out as reasonable doubt. When we have that, and if it’s properly presented, the jury will be able to judge and decide whether the prosecutors meet their burden. A lot of attorneys don’t go through the process of challenging the blood by getting the video of the blood draw, getting the chain of custody, and getting the chromatograms and studying it. In some cases, when we are going to a jury trial, bringing in an expert to examine everything and to testify in front of a jury is another option used to challenge a DUI.
These are cases that can be fought and sometimes won. What we try to do is defend our clients and show that just because the number that the government comes up with is at or over the limit, it does not mean that you should be convicted of DUI or lesser offense. That’s not what it means. You have constitutional rights. You have a right to defend yourself and get a lawyer who knows what they are doing to defend you. That’s what we are here for.
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