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Blood Split Motions as a Legal Defense in DUI cases

"Blood Split Motion" is a legal defense that can be used in California Driving Under the Influence (DUI) cases. The motion involves DUI blood samples being split into two containers. This procedure is authorized by no less than Title 17 of the California Code of Regulations (CCR) itself.

The significance of having the blood samples split into two containers is that one will be used by the law enforcement officers to determine the driver’s BAC % (Blood Alcohol Concentration level); while the other sample can be used by a driver for independent testing. Note that this only applies if the driver opted for DUI blood test over DUI breath test.

Use of Blood Split Motion in Challenging DUI

Law enforcement officers perform chemical tests upon the blood sample obtained from the driver primarily to determine the blood alcohol concentration level. Results from chemical tests administered by law enforcement authorities enjoy the presumption of accuracy. Hence, the burden to prove that results are inaccurate or erroneous is borne by the defense. [17 California CCR 1219.1(f)(2).]

By utilizing blood split motion, the driver is given the opportunity to test his blood sample independently; the ultimate purpose of which is to cast a doubt on the accuracy of the chemical test results conducted by the law enforcement authorities. This is usually achieved by showing that the BAC % is actually less than that asserted by the law enforcement authorities. This scenario is most appropriate in cases when the driver’s BAC % is above the legal limit imposed by the statute. Nonetheless, blood split motion can be made applicable to any DUI charge.

Blood Tests in DUI cases

You may have heard of blood tests in DUI cases, but never figured out when it is deemed necessary. The following are the instances when a person may be required to take DUI blood tests:

  1. When a person is arrested after the police officer made a reasonable conclusion/ suspicion that he/she may be under the influence of drugs; [Vehicle Code 23612(a)(2) (C); See also Vehicle Code 23152(f) – Driving under the influence of drugs.];
  2. Whenever a breath testing device is not available; [Vehicle Code 23612 (a) (1) (A)]; or
  3. Whenever by reason of an existing medical condition, or that the driver is deemed unconscious or for other acceptable reasons, the driver is incapable of completing the breath test [Vehicle Code 23612 (a)(5)]

When a police officer obtains probable cause to arrest the driver for DUI, a chemical test on the driver necessarily follows. This chemical test could either be a blood test or a breath test (or sometimes a urine test), at the election of the driver. At this stage, the driver cannot refuse to take the chemical test there being “implied consent” under the law. [California Vehicle Code 23612(a) (1)]. As such, refusal to take chemical tests in California results in additional penalties including a one-year driver’s license suspension. [See California Department of Motor Vehicles, Driving Under the Influence, Immediate Driver License Suspension or Revocation Drivers Age 21 and Older.]

However, even in the light of the foregoing mandatory nature of chemical tests, it has been declared by the Supreme Court of California in the case of Schmerber v. California (1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 that no one can be forced to take a blood test against his or her will, unless the law enforcement authorities obtain a warrant allowing them to do so.

DUI “Per Se” cases

DUI “per se” laws make it criminal for drivers to drive beyond the legal limit. The law perceives them as legally drunk and they can be criminally held liable as long as they have reached that legal limit prescribed by law. In these cases, the prosecution need not prove that the defendant was actually impaired by alcohol or drugs at the time of the alleged commission of the offense.

California Penal Code 23152(b) or driving under the influence of BAC of 0.08% or higher is considered to be the most common provision of DUI “per se” charges. This applies to drivers who are over 21 years of age.

However, a different legal limit (usually a lower limit) is prescribed in other instances enumerated as follows:

  • When the driver is underage or below 21 years old, the legal limit is set at BAC of 0.01% or higher [Vehicle Code 23136, California’s “zero tolerance” law];
  • When the driver is driving a commercial vehicle, the legal limit is set at BAC of 0.04% or higher [Vehicle Code 23152(d)]; or
  • When a passenger for hire is in the vehicle at the time of the offense, the legal limit is set at BAC of 0.04% or higher. [California Vehicle Code 23152(e)].

Other types of DUI charges

DUI charges are not confined to cases wherein BAC levels in the driver’s system are above and beyond legal limits. Other charges of DUI require the prosecution to prove that the person was driving while being actually impaired by drugs or alcohol or drugs without due regard to the actual amount of BAC%. However, the BAC % may prove to be helpful in the prosecution’s case, but not conclusive of the case’s outcome. These types of charges include violation of Vehicle Code 23152(a), DUI; Vehicle Code 23152(f), driving under the influence of drugs (“DUID”); and Vehicle Code 23152(g), driving under the combined influence of alcohol and drugs.

In these cases, the prosecution must prove that the defendant's driving was actually impaired by alcohol and/or drugs. However, there is no definite guideline on what amount of drug use results in impaired driving and the "legal limit" for alcohol is a general guideline rather than a definitive level of impairment. [See National Institute on Drug Abuse, “Effects of marijuana – with and without alcohol – on driving performance,” June 23, 2015.]. This means that chemical tests will not always be conclusive, but a prosecutor can still use a borderline test result along with other evidence (such as bad driving or poor performance on field sobriety tests) to convince a jury that there is no reasonable doubt. Therefore, discrediting the original BAC results can still be useful in these cases.

Challenging DUI charges with Blood Split Motions

An investigation of "Title 17 CCR" violations using a blood split motion may help defend against California DUI charges. The protocols that law enforcement agencies must follow when administering chemical testing for DUI are outlined in Title 17 of the California Code of Regulations (CCR).

To successfully challenge a DUI charge, the following violations of Title 17 should be taken into consideration:

  • The sample must be obtained as quickly as feasible following the alleged violation.
  • An authorized technician or medical practitioner must take the blood sample.
  • It is necessary to gather enough blood to allow a split.
  • Alcohol from other sources cannot pollute the blood in any way (for instance, from alcohol-based disinfectants).
  • The vial needs to have enough preservatives and anticoagulants.

The foregoing violations listed above are not exclusive. A careful study of the facts of the case would be ideal to determine the best course of action in defending the case.

Blood Split Motion in Urine Test

The urine test in California still has limited applicability. It can only be used when other tests are not available or the driver is medically unable to take another test. Fortunately, for this type of DUI chemical test, urine samples may be retained for independent testing. [17 CCR 1219.2]

In the event that independent testing is desired for urine samples, certain procedures under Title 17 of the CCR must be complied with, namely:

  1. The sample must be taken at least twenty (20) minutes after the defendant has emptied his bladder.
  2. Urine should be collected in sufficient quantities to allow for at least two tests.
  3. Retaining the sample for up to a year after it has been obtained so that, upon request, a part can be given to the defendant (the equivalent of a blood split). [17 CCR 1219.2]

Making Blood Split Motion Happen – A Procedural Approach

The defendant's attorney typically starts a "blood split" motion by requesting the prosecutor for a portion of the sample informally. Usually, the prosecutor will accede to this request. [See Penal Code 1054.1(c) and Penal Code 1054.5(b).] The prosecutor may be ordered by the court to provide the blood or urine split if they refuse or do not within fifteen (15) days. [Penal Code 1054.5(b) PC.]

A prosecutor who fails to turn over the divide may potentially face disciplinary action from the court. This discipline may consist of procedures for contempt against the prosecutor, letting the jurors know about the delay, or preventing the use of the chemical test results at trial by the prosecution; all of which are prejudicial to the prosecution’s case for DUI against a defendant.

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