In California, under Title 17, if we are talking about a blood test in a DUI case, the person who draws the blood has to be properly licensed to do so. In other words, the EMT, nurse, or phlebotomist drawing the blood is required to be licensed. They also have to use a cleaning agent, which cannot be alcohol-based. Sometimes there is a little bit of alcohol, but it can’t be the base of the cleaning agent used to sterilize the blood draws. The vials used to contain the blood must have a specific amount of sodium fluoride or anti-coagulant type preservative that keeps the blood from clotting. If the blood clots or gets some type of contamination, that can cause fermentation, which will give us a reading that’s higher than it should be and give a false positive on a blood test.
There are expiration dates for the different equipment that is used in the blood draw kit. Typically, the substance that’s supposed to preserve the blood has an expiration date. The kit itself, the box with the blood draw equipment, will have an expiration date on it as well. The vials have to have a certain type of stopper. It is usually a grey tube stopper, and there is an expiration date on those tubes too. Every once in a while, there are expired tubes. Other things that can happen could involve the storage of the blood. That’s really important.
Blood must be stored in a properly secured place that is usually refrigerated. It is required through Title 17, and it can be a violation if it is not properly stored. If it’s taking days for a sample to get to storage and the blood is practically baking in the mailboxes, that can be an issue and a Title 17 violation as well. Police officers, who normally are the ones that mail off the blood samples, sometimes put it into an evidence box for blood testing and someone else can get a hold of it. And so, there is a proper chain of custody that is required. Furthermore, the police officer or the person drawing the blood needs to invert the blood sample a certain number of times.
What Are the Regulations For Breath Testing In A DUI Case?
Procedures that must be followed by officers and technicians during a DUI breath test are a bit different compared to blood testing. For instance, a breath test sample that comes from the person being arrested must come from the deep parts of the lung. The machine that tests and converts the breath gives an actual number that is calculated from a mathematical formula. As a result, the air that goes in needs to be deep lung air, which is referred to as alveolar air. Alveolar air comes from the alveolar sacs in our lungs, which are lower. So, deep lung air means that someone needs to take a deep breath and blow out.
If someone has something like gastric reflux and air is constantly coming up from the stomach, that can affect the test. It can be a defense, but we are discussing Title 17 and the regulations that must be followed in breath tests. And so, before someone blows into that machine, they are supposed to be observed by the police officer for 15 minutes or longer. During that time, they are not supposed to smoke, eat, drink, regurgitate, vomit, chew gum, or anything of that nature. A lot of times, the officer can say that they observed the person for 15 minutes, but in reality they may be in the police car or somewhere else, and it is not actually known whether the individual was burping or had stuff coming up from their stomach.
Video can help us with that. I’ve had cases where we’ve had much better results or stronger defenses because an officer was claiming that they observed someone for 15 minutes and they really weren’t observing them. We can show that through video.
Also, the Draeger device used for breath testing that uses both infrared and fuel cell technology needs to be calibrated every 10 days or every 150 tests. I don’t know if I’ve seen a machine that’s been used 150 times within a 10-day period, so it’s typically 10 days. Those are some of the main issues that come up in breath testing under Title 17. Additionally, officers need to be properly trained to use that machine, and the actual testing needs to have been done properly.
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