Not All Blood Draws Are Created Equal

In DUI cases, the prosecution often uses the results of a forensic blood test to attempt to establish the intoxication level of the driver. These tests are often the subject of litigation between prosecutors and criminal defense attorneys.

Blood that is drawn for purposes of testing the blood alcohol content (BAC) of a driver suspected of driving under the influence (DUI) is done according to strict regulations so as to ensure the results are able to be reproduced and are valid as evidence in a court proceeding against the driver. By contrast, blood taken and tested for alcohol content in the course of medical treatment is subject only to the process and procedure in place at that particular institution. Hospitals, especially emergency rooms, are notoriously chaotic places where a blood draw could be compromised in a number of ways. The difference between these two settings and purposes make all the difference in the outcome of the test. A potential problem arises if a prosecutor wants to use a blood draw taken for purposes of treatment and submit it as evidence of guilt in court.

The Implied Consent Law

California’s Implied Consent Law requires that a person lawfully arrested for DUI must submit to either a blood draw or a breath when requested by the arresting officer. (See California Vehicle Code § 23612.) If the person refuses the officer can obtain a search warrant to forcefully draw the person’s blood. Refusing to submit to a chemical test after lawful arrest can result in additional penalties including mandatory jail time and longer DMV license suspensions.

Forensic Blood Draws and Title 17

All blood draws done for the purpose of prosecuting a driver for DUI must be done in such a way that it complies with the procedures found in Title 17 of the California Code of Regulations (CCR). A forced blood draw may only be done by a licensed technician and processed only by a facility licensed as a Forensic Alcohol Laboratory. These technicians and laboratories are monitored by the Department of Public Health’s Forensic Alcohol Program (FAP). FAP requires that technicians pass a proficiency exam and conducts routine on-site inspections of the laboratories to ensure that only approved equipment is used and is functioning properly and the employees are following documentation procedures. The regulations for the collection of the actual blood sample require, among other things, that sufficient blood be collected to permit duplicate determinations (i.e. the defendant can order another test), that the puncture site be cleaned with disinfectant other than alcohol or other volatile organic disinfectant, and that the drawn blood should be mixed with an anticoagulant and a preservative. These regulations were constructed with an eye toward preserving lab testing results whose veracity could withstand scrutiny at court. Each requirement is in place because without it, the test results are open to attack and are at risk for being thrown out at court. In situations where the blood draw results done for purposes of determining BAC in a suspected DUI case are excluded either for the officer failing to obtain a warrant or for some other incurable flaw, the prosecution may look to the suspects medical record for treatment and testing information.