Blood Split Motions in California DUI Cases
For California DUI cases where a blood test is used to determine a defendant's blood-alcohol concentration (BAC), it's a common strategy for the defense attorney to file a "blood split" motion.
This motion asks the court to order the prosecutor to produce a sample of the defendant's blood for independent testing, which aims to verify the accuracy of the BAC test conducted by law enforcement.
In other words, California law permits drivers who take a DUI blood test to obtain part of the blood sample for independent testing by filing what is called a blood split motion.
These “blood splits” are authorized under Title 17 of the California Code of Regulations (CCR). Notably, DUI blood tests are advantageous over a DUI breath test, which can't be preserved for independent retesting later.
A blood split refers to “splitting” DUI blood samples into two containers. One is used for law enforcement testing of a driver's blood alcohol concentration (BAC), while the other container is saved in case the driver wants to have their blood independently retested.
This splitting would only apply when a driver decides to take a blood test. Sometimes, they must take one if a breath testing machine is unavailable or the driver cannot complete a breath test, such as being too intoxicated or having a medical condition.
Notably, when police believe someone is driving under the influence of alcohol, they will be given a choice between a breath or blood test. Nobody can be forced to take a blood test against their will unless police obtain a warrant. California has penalties for a chemical test refusal, such as a one-year driver's license suspension.
If the results of your test don't match those of law enforcement, it may be sufficient to cast reasonable doubt and result in the dismissal of the charges.
What Are the Advantages of Having a DUI Blood Test?
In California, if you're arrested on suspicion of DUI, Vehicle Code 23152 VC, you must submit to a chemical test, commonly a blood or breath test (and sometimes a rare urine test), to determine your BAC.
If the BAC is found to be 0.08% or higher, you can be charged with driving under the influence. Typically, you can choose between a breath test and a blood test. If no breath testing is available, the blood test is required unless you have a medical excuse.
A good defense attorney will usually recommend that you choose a blood test over a breath test when possible—for two important reasons.
- Accuracy and reliability. Unlike breath tests, which can be affected by mouth alcohol, body temperature, and even certain medical conditions, a blood test directly measures the amount of alcohol in the bloodstream, providing a more precise reading of a person's blood alcohol concentration (BAC). This precision can significantly affect close-call cases where the BAC is near the legal limit.
- Independent verification. Breath samples can't be saved and, therefore, can't be submitted for independent testing. Your blood can. This is particularly beneficial for a defendant, as it provides an opportunity to challenge the prosecution's BAC evidence.
How Does a Blood Split Motion Work?
The central premise of a blood-split motion lies in the right to an independent re-examination of the evidence. When a driver submits to a blood test, the state reserves and stores a portion of the sample, hence the term "blood split."
When a blood split motion is filed, the court orders the release of the reserved sample to an independent lab chosen by the defense. This lab then conducts its own analysis of the blood sample.
Suppose the independent test results vary significantly from the original BAC results. In that case, it can cast doubt on the accuracy of the initial test and potentially impact the case outcome. The most common drunk driving charges in California include the following:
- Vehicle Code 23152(a) VC – driving under the influence;
- Vehicle Code 23152(b) VC – driving with a BAC higher than 0.08%;
- Vehicle Code 23153 VC – DUI causing injury;
- Vehicle Code 23153(f) VC – driving under the influence of drugs;
- Vehicle Code 23152(d) VC – commercial vehicle DUI at 0.04%;
- Vehicle Code 23140 VC – underage DUI at 0.05% or higher;
- Vehicle Code 23136 VC – zero tolerance law at 0.01%.
Why is Independent Testing Important?
Aside from the fact that it is your legal right to reexamine the evidence against you, law enforcement is bound by Title 17 of the California Code of Regulations to follow specific protocols when running chemical testing to check for DUI. These protocols include:
- Collecting the blood sample as soon after the alleged offense as possible;
- An authorized, trained technician must collect the blood;
- The blood must be protected from contamination; and
- The vials for blood collection must have enough anticoagulants and preservatives.
Unfortunately, these protocols are not often followed, resulting in a corruption of the evidence. Independent testing can be used to verify or disprove the accuracy of law enforcement testing and show that various aspects of Title 17 may not have been followed, resulting in corrupted evidence that cannot be admissible in court.
How Can Independent Testing Be Used to Fight DUI Charges?
Independent testing of a blood split can be a valuable tool to combat the prosecution's evidence that you committed DUI. The prosecution must prove their case beyond a reasonable doubt to get a conviction against you.
If independent testing reveals a discrepancy between your results and those of law enforcement, it can create the "reasonable doubt" necessary to get the charges dismissed. Some ways your attorney can use these results include, but are not limited to:
- Challenging the Accuracy of Initial Testing: If the independent test yields a lower BAC result than the initial test, it can provide compelling evidence to challenge the DUI charge. For instance, if the independent test shows a BAC level below the legal limit of 0.08%, it could potentially lead to the dismissal of the case.
- Challenging the Testing Procedure: Independent testing can also uncover errors in how the original blood sample was handled or tested. For example, if the blood wasn't properly stored or the testing equipment was not calibrated correctly, it could affect the accuracy of the results.
- Highlighting Possible Contamination: The independent lab can check for signs of contamination in the blood sample. If any contamination is discovered, it can be used to challenge the validity of the original test, as such contamination could artificially inflate the BAC reading.
If a prosecutor fails to or refuses to turn over the blood split within fifteen days, the court could order them to turn it over and even discipline them.
Suppose you ask for a blood split and don't have it tested. There are no penalties in that case, and the prosecutor will typically introduce the original result at trial.
Often, a blood split result does not help a defendant. Perhaps independent testing confirmed that the original test was accurate. Maybe the result was even a higher BAC than the report from the police laboratory.
A defendant's lawyer is not required to show unfavorable evidence, but the blood-split motion may not help the defendant's DUI defense.
If you are charged with a California DUI and need assistance with a blood-split motion, we can help you. You can contact us for a case review by phone or via the contact form. Eisner Gorin LLP has offices in Los Angeles, CA.