Evidential Blood Testing

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I’m Darren Kavinoky, Founding Attorney of The Kavinoky Law Firm.

Did you know that there are more than 50 ways that alcohol testing in DUI cases can be wrong?
In this video I will focus on ways that your blood test may have been flawed and given a false
reading. There are so many problems and pitfalls with testing machines and until people are
educated about them, they cling to a mistaken belief that if the machine spits out a number, that
it has to be right. But we know, from nearly two decades of doing this, and digging into
literally thousands of cases, that nothing could be further from the truth. If testing
machines are not calibrated regularly and maintained properly, the results that they
create cannot be trusted and should not hold up in a court of law.

Blood tests have many challenges, especially around the integrity of the sample. Unlike
breath tests, which require 2 samples to be given, a blood test involves only one needle
stick, and if there is an issue with that single test, the entire result is compromised.
For example, each blood vial is supposed to have a certain amount of anti-coagulant and
preservatives in it. However, no one at the crime lab is checking to see how much is in
any particular tube and we can use this failure to challenge the test results. Also, failure
to have the proper preservatives in proper amounts can lead to bacterial growth, fermentation,
and an artificially high level of alcohol being reported. These reasons, as well as
possible contamination from other sources, are all factors that your lawyer can use to
fight your case.

Other problems can result from the procedure that is used to test your blood sample. Some
main examples of this would be lack of proper refrigeration of the sample, a blood draw
kit being used after its expiration date, improper chain of custody documentation, and
even plain human error. When blood is tested, it isn’t like CSI Miami where one lab tech
in a pristine white lab coat is counting alcohol molecules through a microscope. Many blood
vials are loaded on a rack and run through the testing machine, called a gas chromatograph,
at the same time. If there is human error, and the wrong vial is put in the wrong space
on the rack, the crime lab will misattribute one person’s sample to someone else. We
have seen this actually happen to one of our clients! When we got the blood sample typed,
and proved that it was a different blood type than our clients blood, we were able to get
rid of the DUI charges completely.

Our team knows how to apply a rigorous, science-based approach to get to the best results
for anyone facing a DUI charge. If you’ve been arrested for DUI, we know you’re going through a
tough time; on behalf of everyone here at the Kavinoky Law Firm, we hope this helps.

Whenever someone is arrested for DUI in California, the law allows for a choice of tests. If they are arrested for driving under the influence of alcohol, then they are to be offered the choice between a breath test and a blood test. If they arrested for driving under the influence of drugs, they have a choice between a blood and a urine test.

Of course, many drivers report that law enforcement offers dishonor the law concerning California’s implied consent rights by insisting that the person arrested submit to the officer’s choice of test for them. This can give rise to another issue, namely, suppression of the results where they are the byproduct of a pattern of law enforcement abuse by not honoring this right.

Issues with Blood Testing

If the defendant selects a blood test, there are many issues that arise. The primary issue in blood testing relates to integrity of the sample. The test tube into which the blood sample is drawn is supposed to contain legally prescribed amounts of anticoagulant and preservative. If these aren’t there, or are there in either inadequate or excessive amounts, the integrity of the sample can be compromised. It is quite possible that, given the delays in testing that are routine, an inadequately preserved blood sample can ferment and create artificially high levels of alcohol that overstate what was actually in the driver’s system at the time of the blood draw.

Of course, a blood sample result is only accurate, if at all, for the alcohol level in the defendant at the time of the blood draw. This tells us nothing about the blood alcohol level of the driver at the time of driving, which is the only point in time that truly matters in a California DUI case.

Advantages of Blood Testing Over Breath Testing

There is a distinct advantage of blood testing over breath testing, in terms of defending the case, and that relates to the number of results that are produced. In a breath test, Title 17 requires that there be two breath samples produced, that are within a .02 agreement of one another, taken at least two minutes apart. In a blood test, there is just one needle stick. That means that, at its best, a blood test represents just one point in time, usually a significant period of time after driving, as opposed to two separate results from just one breath test, where, if the results are close to each other, each result serves to reinforce the other.

Other challenges with blood cases include:

• Contamination from an alcohol swab;
• Chain of custody issues;
• Not properly inverting the sample test tube, as required to properly combine the blood with the anticoagulant and preservative;
• Fermentation;
• Problems with calibration or accuracy in the blood testing equipment;
• Human error in testing.

Human Error and Blood Testing

As to human error, this is something not to be overlooked. Our office handled a case where the results came back at an amount our client said was impossible. We had the sample blood typed, and it turned out to be of a different blood type than our client. The prosecution, because of an error in the crime lab, was attempting to misattribute someone else’s blood sample to our client. Thankfully we caught the error, and the case was dismissed.


Forced Blood Draws

When drivers refuse to submit to a chemical test, police are authorized to take blood samples by force- either by holding the driver down, or by threatening to do so. During a forced blood draw, trained medical personnel actually draw the blood for use in the later prosecution for drunk driving.

In California, a forced blood draw is considered a “refusal.” A refusal has many repercussions, including fines, jail time, and suspension of driving privileges. Therefore, a forced blood draw may result in both a conviction for DUI and added penalties. Some police agencies have a tendency to state that a DUI suspect refused even when he or she did not.

In order to withhold the forced blood draw results, a suppression motion may be instituted. A suppression motion is a motion usually made before the start of trial, where the court is asked to exclude evidence because it was not gathered in a constitutionally valid way.

Proper Protocol for Forced Blood Draws

The Supreme Court stated that the proper protocol must be followed in a forced blood draw. If this protocol is not followed, then the DUI defendant may validly claim a violation of his or her Fourth Amendment right. Thus, it is not only proper, but mandated, to suppress this evidence. Suppressed evidence may not be considered by the judge or heard by the jury. According to the legal principle of “fruit of the poisonous tree,” any evidence gained as a result of the unconstitutional evidence must also be suppressed.

This is a serious and necessary weapon in the fight for constitutional rights, and one of the few safeguards the law offers where an individual’s rights have been violated. An experienced DUI / DWI defense attorney can review the procedures used in a forced blood draw to determine whether a driver’s rights have been violated. If the proper protocol was not followed, the attorney will argue that the evidence should be suppressed.