Rules Must be Followed for DUI Blood Draws

Posted by Robert Berglund | Apr 11, 2017 | 0 Comments

If you are arrested for Driving Under the Influence (DUI), California law requires you to submit to breath or blood test to measure your blood alcohol content (BAC).  If you are over the .08 legal limit, and the test was conducted within 3 hours of the time of driving, it is presumed that your ability to drive was impaired by alcohol.  If a DUI suspect's blood is drawn, either because the police obtained a warrant or the person consented, accepted medical practices must be followed for the blood draw to be constitutional.  The blood must have been obtained in a medically approved manner.  Court cases from the United States Supreme Court and California courts have provided guidance as to what constitutes a "reasonable manner."  The "totality of the circumstances" standard is used to determine whether this was done.  This is a legal standard that says the courts should focus on all of the circumstances of a particular case rather than just one.  In other words, there is no single deciding factor.  The court will consider all of the facts and context in reaching a conclusion.  

When it comes to the question of whether the test was done in a reasonable manner, the totality of the circumstances must show that the blood draw did not expose the person to an "unjustified element of personal risk or pain" and was not performed in a manner which created any "undue harm or risk" to the person.  If it does, then the blood draw is unconstitutional.  A blood draw conducted at a police station by non-medical personnel would potentially create a condition that could pose an "unjustified element of personal risk or pain."  On the other hand, blood taken by a physician in a hospital environment according to accepted medical practices would not likely present these risks.  

In court, a good DUI Lawyer will consider challenging the constitutionality of the blood draw.  This is done by filing a California Penal Code Section 1538.5 motion to suppress evidence.  The Los Angeles City Attorney, Los Angeles County District Attorney, or other prosecuting agency has the burden of showing the test was done in reasonable manner.  This can be done by testimony from either the person that performed the blood draw or the law enforcement officer that observed it.  Several factors are considered in determining whether the blood was drawn in a reasonable manner, including: 1) whether the person drawing the blood was a physician, trained phlebotomist, or blood technician; 2) whether there were any signs of pain or discomfort of the person during the blood draw; 3) whether the blood draw was conducted in a cooperative manner; 4) whether the blood drawer utilized needles from a sealed package; 5) whether the blood extraction area was cleaned prior to the needle being inserted; and 6) whether the blood area was cleaned and bandaged after the blood draw.  If you are interested in reading recent case law regarding this issue, including the factors listed above, take a look at the California Court of Appeal decision in the case titled People v. Anthony Cuevas (2013) 218 Cal.App.4th 1278.

If the prosecution cannot prove the test was done in a reasonable manner the results of the test will be excluded from evidence.  This means that the result cannot be used against you at trial.  For example, let's say Joe gets arrested for DUI.  Police take him back to the police station where his blood is drawn by a jail nurse in the holding cell.  The credentials of the nurse drawing the blood are unknown.  Joe is in pain during the blood draw and asks the nurse to stop.  The nurse declines to do so and completes the blood draw.  The nurse fails to wipe off Joe's arm after the draw and fails to bandage it.  DUI charges are filed against Joe.  Several weeks later, the blood test results return and show that Joe's BAC was .16, twice the legal limit.  Joe hires a good DUI Lawyer who files a motion to suppress the blood test result.  At the hearing on the motion, evidence of the above facts is proven.  The Judge concludes that accepted medical practices were not followed and, therefore, excludes the .16 blood test result.  This means that if Joe decides to go to trial, the blood test result cannot be used against him.  If Joe does not want to go to trial, his DUI attorney may be able to negotiate a plea bargain to a reduced charge, meaning the DUI gets dismissed, since the DUI case against Joe is much weaker without the BAC result. 

It is important not to go to court alone and represent yourself if you are arrested for DUI.  There are many issues that a good DUI Lawyer can take a close look at that may be very helpful to your case, sometimes resulting in dismissal or reduction of the DUI charges.  If you cannot afford to hire private criminal defense counsel, ask the Judge to appoint the Los Angeles County Public Defender to represent you.  If you are able to afford an attorney, make sure that you hire one that is experienced in DUI cases.  Berglund Law Office, P.C. specializes in representing individuals that have been charged with DUI.   CONTACT our office today for a free and confidential consultation.   

About the Author

Robert Berglund

Attorney Robert D. Berglund specializes in representing persons arrested on suspicion of Driving Under the Influence of alcohol or marijuana...


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