Some issues common to DUI Blood Cases
- Timing of blood draw relative
to driving – generally a substantial delay
- Fermentation: formation of alcohol
in blood tube after draw and before analysis (e.g. insufficient
sodium fluoride preservative/critical delay between draw and analysis).
- Failure to properly store the
blood sample prior to analyzing;
- Hospital blood draw vs. law
enforcement blood draw;
- Clotting or coagulating.
- Contamination (e.g. swabbing
skin with Zephiran containing 2% ethyl alcohol).
- Chain of custody or wrong blood
- Improper draw or improper administration
of blood test.
- Failure to comply with Title
17 (e.g. failure to mix blood sample with anticoagulant and preservative).
- Poor laboratory procedures for
analyzing blood samples for alcohol
- Unqualified blood test analyst.
- Failure of proper prosecution
expert to appear at trial.
- Blood test record not made at
or near time of analysis or blood test report not trustworthy.
- Unauthorized blood technician
Issues related to defense in a California
DUI Breath Test cases
There are a number of different manufacturers
of breath test machines and a skilled and experienced DUI attorney
should have some experience with the machine used during the course
of investigation related to your DUI case. If not he should be committed
to obtain that experience before taking your case to trial.
The breath machine measures a very minute sample of alcohol contained
in your breath. The theory is that the breath sample being measured
is made up of what is called Alveolar Breath. This is breath from
the deepest part of your lungs. The machine cannot identify specifically
that the breath sample is Alveolar Breath. The machine assumes that
the sample is Alveolar based on a mathematical formula or algorithm.
In reality many if not most breath samples are tainted with a breath
sample not exclusively consisting of Alveolar Breath. The result
of this is that the breath sample is contaminated with a sample
containing what is commonly called “mouth alcohol” that
will contain a higher concentration of alcohol than the Alveolar
Breath and result in a false high reading of your true Breath/Blood
In addition to the problem of contamination of the Alveolar breath
sample the concentration in your breath may be higher than your
true blood alcohol concentration while your body is still absorbing
Also you are commonly tested sometime after you have been driving
and your breath/blood alcohol concentration will likely have risen
since you were driving. The prosecution will bring in an expert
to limit the timeframe when your body absorbs alcohol in order to
try to avoid this inherent problem with breath testing. A skilled
and experienced DUI lawyer will know how to cross-examine the prosecutions
expert to ultimately provide evidence in your favor on this issue.
Additional Considerations related to Breath
- No continuous observation for
entire 15 minutes before first breath sample (e.g. Officer attempts
to include transportation time as part of required observation
period or you were left alone at anytime prior to taking the
test -e.g. used restroom or telephone or placed in holding cell/room).
- During those 15 minutes before
the test, you burp, belch or have slight regurgitation of gas
that is relatively quiet.
- Vomiting, belching within 15
minutes of test - no rinsing of mouth, or inadequate deprivation
period before retest.
- You may not be a proper subject
for breath testing.
- You have a physical problem
or health limitation:
- gastric reflux
- hiatal hernia
- intestinal problem (e.g. Gastro
Esophageal Reflux Disease Irritated Bowel Syndrome, or Acid Reflux
Syndrome) diagnosed and treated before date of arrest or otherwise
confirmed to have existed prior to arrest;
- Dental condition (e.g. gum disease/gingivitis/pockets
around roots, dentures, crowns or bridgework, which may trap
mouth alcohol and contaminate a breath machine sample);
- Diabetes related symptoms;
- Respiratory problem (e.g. asthma,
bronchitis, emphysema or chronic obstructive pulmonary disease).
- The breath test room or circuitry
has a problem (e.g. Radio Frequency Interference from a cell
phone, officer's radio, copy machine or other equipment with
surge capabilities) which may cause machine to give artificially
high reading; smoking in or near machine; shared power supply
with heater or other appliance - must be dedicated "clean" electrical
source; or recently painted walls or trim).
- You have had recent environmental
exposure to volatile fumes (lacquer, gasoline, paint, dry cleaning
fluids or even 409) which have cumulative reading, causing chemical
interference/falsely elevated result.
- Air bag defenses - "the
Tyndall effect' - diffusion of light; propellant exposure; cut
lips; lung and airway irritation & fluid build-up from caustic
- High test result, yet you never
urinate for 3 to 4 hours or more - physiological impossibility.
- Unintentional alcohol (e.g. from
Nyquil, Vicks Formula 44, lip balms, toothache drops).
- Something in mouth containing
alcohol (e.g. Breath Drops with SD alcohol).
- Something in your mouth that
contains or stores small quantities of alcohol, food, bread, chewing
- Something in mouth that contains
interfering or contaminating substance (e.g. Skoal snuff - wintergreen;
Altoids curiously strong mints).
- Improper or out of agreement
tests, without follow-up tests to correct [both results must
be within 0.02% of each other].
- Officer refuses to permit your
request for a second, independent test;
- Denial of blood test;
- Officer not trained or marginally
trained in accordance with the standards of Title 17 of the California
Code of Regulations (e.g. not trained in theory of operation
- Officer fails to follow manual
or training protocol.
- Inadequate inspections by machine
inspectors (e.g. no linearity proven).
- Police report supports sobriety,
or lack of investigation of alternative causes.
- Rising blood alcohol level showing
time of driving BAC would have been lower than time of testing.
- Elevated breath temperature (e.g.
caused by fever, hot tub, sauna, detention in hot sun or back
of patrol car in summer, dancing, menstrual cycle, etc.)
- Built in margin of error based
on presumptions regarding breath temperature;
- Cumulative Margin of error related
to regulatory testing procedures;
- Breath/blood ratio (2100:1)
not proven to be your ratio; show how minor error gets multiplied
2100 times; 0.12 = 17/10,000,000th of an ounce. Show you have
abnormally low blood/breath conversion ratio through testing
- Difficulty blowing into the machine;
- Officer requiring you to blow
into the machine with strain causing false high reading;
- You have blowing pattern irregularity
(e.g. blubbering and crying causing artificially
high water vapor problem).
- You have been on strict high
protein diet and then introduce carbohydrates, thereby triggering
auto-generated alcohol production when ketones are converted
to isopropyl alcohol (or the"auto-brewery" syndrome).
- You have diabetes, are borderline
diabetic or are hypoglycemic and consume alcohol
in any amount, causing conversion of high acetone levels into
- Breath test operator gets first
BAC results, which will not support a .08% per se case,
then waits a few more minutes and retests, obtaining a reading
above the per se limit.
- Officer gives chemical test admonition,
but then goes too far by threatening dire warnings for which
there is no factual basis or misstates consequences regarding
possible license suspension.
- Testing occurred more than 3
hours after driving;
- Consumption of alcohol after