When the police arrest you for drunk or drugged driving, and you opt for a blood test, the law mandates that a portion of the blood sample be preserved for future testing. So, when your defense team is unsatisfied with the accuracy or reliability of the toxicology results from the crime laboratory, they can request retesting of the preserved sample, also known as a blood split, for analysis in an independent lab. The petitions where defendants file to ask the court to order the prosecutor to provide a sample for retesting after the prosecutor denies informal requests are called blood split motions.
At the San Diego DUI Attorney, we will exercise the motion as a defense strategy to question the reliability and accuracy of the toxicology tests the prosecutor presents as evidence in court. If the judge or jury doubts the accuracy of the results, you will secure a favorable outcome like a charge reduction or dismissal.
Blood Split Motions Overview
California Code of Regulations (CCR) Title 17 provides guidelines for blood splits. These are practices of splitting blood samples into two bottles or containers. One is utilized for toxicology or blood alcohol concentration (BAC) testing in the government crime lab, and the other is preserved for future independent analysis. Before the attorney files the motion, they first make an informal request to the DA to provide the sample for retesting, to which many agree. However, when the prosecutor fails or declines to provide the sample, your attorney files a split motion for the judge to order the DA to turn over the saved sample.
When the prosecutor disregards court orders, they risk:
- Contempt of court charges
- A requirement to notify the jury of the delay in handing over the sample
- Inadmissibility of the chemical test results, which is the prosecutor’s primary evidence in the trial hearing
You can request the saved sample and not test it without putting yourself in legal trouble. Nevertheless, whether you retest the sample or not, the prosecutor will use the test results from the initial sample in court.
Police arrest DUI suspects if there is probable cause for operating a vehicle when drunk or drugged. After arrest, they move you to a police station for further testing. The tests conducted at the station include breath, urine, and blood tests. Unlike the breathalyzer test conducted during preliminary investigations on the roadside, which is optional, post-arrest tests are mandatory. However, the police should not force you to take the tests, although declining to provide a breath, urine, or blood sample for testing attracts an administrative penalty of no more than twelve months of driving privileges termination. The penalty is imposed because you automatically consent to these tests whenever you obtain a driver’s license and operate your car on a California highway.
When you arrive at the station, the arresting officer will ask you to choose your preferred test, depending on the circumstances. If you choose a breath test, you will receive the results immediately. However, the downside of these tests is that no sample is preserved for retesting, as it is not required under the law. So, even if you are dissatisfied with falsely high results, you could have difficulty building a strong defense because there will be no split sample for independent testing.
However, this should not mean you cannot contest the accuracy of the results. You can challenge the procedures to conduct the tests or argue that the testing equipment was improperly calibrated or maintained. The police must, therefore, follow the guidelines provided by the law for breath tests. Your attorney should analyze the case and police report to find faults that can be used as a defense.
Blood sample results are not immediate because they must be sent to the lab for analysis. Even if you wait longer for the results, your sample is split into two containers, and one is stored for future retesting. Therefore, when the results come back positive for drugs or with a BAC of 0.08% or more, but you doubt their accuracy, your attorney can exercise the blood split motion. If granted, the preserved sample is independently tested and can help prove the faults or inaccuracy in the prosecutor’s evidence. Title 17 provides guidelines for urine sample collection and preservation, but these are rare because urine tests are rarely used in drinking and driving cases.
Title 17 mandates law enforcement to preserve a sample. So, whenever you submit your urine or blood sample, the processing officer must split them into two and save one. Blood split motions become a defense strategy because if, after the independent analysis, the test results indicate a lower BAC than the one in the results provided by the prosecutor, you will have proof that the DA’s test results are unreliable or inaccurate and, therefore, should not be admissible as evidence.
Besides, when the processing officials fail to set aside a portion of your blood sample for testing as mandated under Title 17 of CCR, your attorney can petition the court to dismiss the evidence. If they fail to save or misplace the sample, your attorney can petition the court to remove the chemical test results from the evidence, leaving the prosecutor with a weak case.
Additionally, the law has a provision for storing split samples. If independent analysis shows these samples are contaminated or inaccurate, your attorney can argue that they were tampered with. Again, excessive preservatives in the samples can be evidence of poor storage and a defense strategy to challenge the chemical test results.
Instances When Blood Tests are Necessary
The processing officer will administer a blood test if:
- There is reasonable evidence that you are drugged driving
- Breath-testing equipment is unavailable or broken
- You cannot provide a breath sample because of a medical disorder, or you are unconscious due to intoxication
If these circumstances apply to your case, blood testing will be necessary. However, in typical cases, the officer must ask you to pick between a blood or breath test. You can decline to submit a sample for blood testing if you have a medical condition. The police should not force you to take the tests unless they have a warrant. Nevertheless, you should know that the refusal to submit the sample for chemical testing will lead to additional penalties, typically twelve months of withdrawal of driving privileges.
Effects of Blood Splits Motions on the DUI Charges
Blood splits help prove a violation of CCR Title 17. When results from the independent testing show that the samples were contaminated or improperly stored, your attorney can rely on the defense to demonstrate the unreliability or inaccuracy of the test results provided in court as evidence against you. When there is a clear violation of Title 17, it is sufficient reason to convince the judge or jury that the samples were contaminated by external factors leading to falsely high BAC or positive toxicology results.
For example, Peter weighs 200 pounds, meaning he can take five beers without exceeding the designated BAC limit. However, one day, Peter takes five beers in a local bar on his way home. Before arriving home, he is stopped and upon conducting a blood test, the officer discovers his blood alcohol level is above the legal limit, but this is because of rising blood alcohol. However, if Peter’s attorneys ordered an independent test on the blood split, the results would indicate a lower BAC than that of the first test. If the results differ, you are likely to secure a dismissal. Again, when the split sample is improperly preserved, leading to blood fermentation, the results will vary from those of the first portion, leading to an acquittal.
Still, many defendants are afraid that the test results from the blood split could hurt their defense if they turn out to have a higher BAC than that of the first test. However, the good news is blood splits cannot hurt your case. Unlike the prosecutor, you are under no legal obligation to reveal the results because this is your evidence. And you can choose to use it or not. If the results from the tests are favorable and could help you secure a charge reduction or dismissal, you can reveal them in court. Nevertheless, you can withhold the results if they are unfavorable. So, a blood split can fail to help your case, but it will not hurt it or have adverse effects, meaning you can always consider the motion as a defense strategy.
Using Blood Split Motions to Fight Drunk or Drugged Driving Charges
Blood split motions are effective defense strategies when you want to question the reliability or accuracy of chemical test results. They are based on the premise of independent evidence retesting, which is why processing officers save a sample for later.
When you informally request a reserved sample from the prosecutor or the court grants your blood split motion, the sample is released for you to conduct your examination. When the results vary from those of the initial tests in a way that helps you put doubt in the jury's minds about the reliability of the results submitted against you in the trial, you can use the motion as a defense strategy to secure a fair verdict.
The DA utilizes the results from the chemical tests to prove you violated various DUI statutes. So, it is up to you to rely on the blood split results to show you were not violating any of the following laws that could apply in your case contingent on the circumstances:
“Per Se” Drunk Driving Cases
California “per se” statutes impose penalties for drivers operating vehicles with a BAC exceeding 0.08%. During prosecution, the prosecutor must demonstrate beyond reasonable doubt that the BAC was above the legal limit. When the results from the independent retesting of the spilt blood sample show a BAC lower than the legal limit, it creates reasonable doubt, meaning that the prosecutor will not attain the evidentiary standard required in the case, resulting in reduced charges, penalties, or charge dismissal.
For instance, when the first container of your blood tested in the government lab shows that your BAC is 0.11% and you doubt the outcome, you can use the blood split motion to retest the second sample independently. If the results show a legal BAC of 0.6%, the court will drop the case, particularly if you were charged under Vehicle Code (VC) 23152(b), driving with a BAC higher than 0.08%.
Apart from VC 23152(b), other “per se” laws where you can use this defense strategy include:
- VEH 23140 prescribing underage driving with a BAC of at least 0.05%
- VEH 23152(d) prohibiting commercial drivers from being behind the wheel with a BAC of 0.04% or above
- VC 23152(e) forbidding limo, ride-sharing, and taxi drivers from driving with a BAC of 0.04% or more
- VEH 23136, also called the zero-tolerance law, bans underage drivers from having a 0.01% or more alcohol mass in their bloodstream.
Under the Influence DUI Charges
Your attorney can depend on a blood split motion to contest DUI based on the premise of being under the influence but within the legal BAC limit. The laws that fall under this category are:
- VEH 23152(a) that focuses on drunk driving regardless of BAC level
- VEH 23152(f) outlining drugged driving or DUID
- VEH 23152(g) highlights driving under the influence of both alcohol and drugs
- VEH 23153 DUI with injuries
When you face these charges, the DA has the burden of demonstrating you were intoxicated or impaired, even if the BAC was within the legal limit. The prosecutor does not rely on chemical test results. Instead, they depend on impairment symptoms like erratic driving and failure in the field sobriety tests.
If independent retesting shows discrepancies in the results, you can use the evidence to contest the prosecutor’s assertion that you were intoxicated. You can argue, through your attorney, that the perceived intoxication signs or poor performance were not due to intoxication by controlled substances or alcohol but rather a medical condition like diabetic coma.
Using Blood Splits to Reveal Police Misconduct
Title 17 lists procedures police must adhere to when collecting blood, urine, and breath samples for testing. The Regulations Code also prescribes how evidence should be analyzed and preserved. When police disobey these procedures or engage in misconduct, they violate Title 17, creating grounds for defendants to challenge the DUI charges.
One of the regulations requires that only authorized personnel should collect the samples used for chemical testing. If an unauthorized party collected the samples, you could argue that they did not understand Title 17 protocols for handling the samples to prevent contamination, making the results inaccurate. Your attorney can strengthen the assertion by requesting independent retesting of the reserved sample. If the analysis results show the sample is contaminated, your attorney can argue the person conducting the tests was unqualified, making the chemical results inadmissible in court.
Similarly, your attorney can use the blood split to show that police officers contravened Title 17 by not collecting sufficient blood samples to enable them to split into two so that one can be used and the other saved. When police collect a small blood sample, they will not reserve a portion for independent examination, which violates the law. Under the circumstances, your attorney will request the court to drop the judge to dismiss the blood sample results because it violated Title 17 due to failure to reserve a blood split.
Also, Title 17 requires the chemical samples for the DUI offense to be gathered as soon as possible. If the officers delayed before taking the samples, the actions contravene Title 17.
Chemical samples, such as blood, breath, or urine, should not be contaminated. Typically, breath tests are inaccurate due to poorly maintained or calibrated equipment, while blood or urine samples are prone to cross-contamination. You can request the reserved sample for independent testing when you suspect contamination. If results show the tests are contaminated, the results against you in court could be falsely high, and your attorney can argue that it should be dropped from the case. If the evidence is struck off the case, the prosecutor is left with a weak case, forcing them to drop the charges or offer a favorable plea deal.
Another Title 17 regulation states that blood splits must contain sufficient preservatives or blood thinners for proper preservation. Unfortunately, there are instances when the preservative is too little, leading to falsely high BAC. The wrong preservative amounts cause blood fermentation and inaccurate test results. A blood split motion will enable you to access the container with the reserved blood sample. You can run independent retesting to establish whether the blood thinners and preservatives are present. If they are insufficient, the court will dismiss the results of the initial sample submitted by the prosecutor due to a Title 17 violation. If you prove poor preservation before filing charges, the DA will not file charges.
Additionally, the law requires the correct preservative amount to be sufficiently mixed with the split sample. The authorized lab technician must mix the samples sufficiently. When the independent tests produce results inconsistent with the initial test, you can assert that even if there were sufficient preservatives, the technician did not mix the combination while in breach of Title 17, hence the different results. A violation of the law amounts to misconduct and will result in case dismissal.
Lastly, you can claim that the personnel authorized to draw the blood failed to clean the draw area sufficiently or cleaned it using an alcohol-based disinfectant, altering the blood sample composition and leading to a false high BAC.
Title 17 regulations streamline chemical testing samples’ collection, testing, and preservation. Also, drunk or drugged driving arrests must follow particular procedures to be legal. Any misconduct or contravention of set regulations during sample collection, preservation, or testing can force the judge to drop the associated sample or evidence. A blood split enables retesting to help you determine if there was misconduct or violation of the law that could affect the reliability and accuracy of the results. If your attorney uses evidence from the independent tests in your favor, the DUI charge could be reduced to a misdemeanor or dropped altogether. However, these results alone do not determine the outcome of your case. The results of DUI charges depend on several other factors. So, the verdict on your charges will depend on the case’s unique circumstances.
Urine Splits
There are no breath split motions. However, few other motions exist apart from blood splits. One of them is the urine split, which under Title 17 must meet these conditions:
- The urine sample must be collected within twenty minutes after the first emptying of the bladder
- The urine sample must be sufficient to enable splitting so that at least one sample can be preserved for future independent retesting.
- The saved urine sample must be stored for at least twelve months to be turned over upon the defendant’s request.
Urine tests are rarely sanctioned unless breath or blood tests are unavailable due to equipment fault, medical condition, or unavailability.
Benefits of Submitting Blood Samples for Chemical Testing in DUI Cases
Submitting samples for chemical testing is a requirement after arrest on suspicion of drunk or drugged driving. You have several options, including breath, blood, or urine tests. If you cannot submit a breath sample for some reason, you can go for the blood sample. DUI defense attorneys encourage suspects to choose blood testing over other options.
First, blood testing is recommended because the results are highly accurate and reliable when proving BAC. The tests measure the direct levels of alcohol in your bloodstream, having a significant impact in cases where BAC is close to the designated limit.
The other reason is that blood samples can be preserved for future independent testing to show inconsistency or inaccuracy in the prosecutor’s evidence.
Find a Competent Drunk or Drugged Driving Attorney Near Me
When you are arrested for a DUI offense and submit a blood sample for chemical testing, you can acquire the saved sample for independent testing to demonstrate the unreliability or inaccuracy of the chemical test results. However, even if you submitted a breath sample that is not preserved, there are other defense strategies to explore to prove the test result inaccuracy. At the San Diego DUI Attorney, we encourage you to consider blood tests or consult our attorneys on the most suitable chemical test. Call us at 619-535-7150 to discuss the details of your case to prepare appropriate defenses.
