If you are arrested for any DUI involving drugs you are likely to be given a blood test after your arrest. Blood tests are also increasingly used for DUIs involving alcohol, rather than the conventional breath test, because they’re seen as being more accurate. However, the test results are not definitive. There are many ways for a blood sample test to go wrong—and give a false result.
Any good DUI lawyer will investigate how your blood sample was taken, where it was processed and whether the results can be called into question. Attacking the blood test results is one of the strongest ways to defend your case. It could even get the DUI charges dropped.
Is it true that blood tests are more accurate than other DUI chemical tests?
If everything is done correctly, a blood test gives an accurate reading of the amount of alcohol in your blood. This is much more useful than a breath test, which tests the blood indirectly by using your breath as a proxy. Breath tests can easily be thrown off by factors like alcohol that’s still in your mouth.
However, blood tests have many issues of their own. When your blood sample is drawn, it isn’t analyzed immediately. It has to be sent to a lab which may analyze it days or weeks later. A lot can happen between the moment you give the blood sample and the time that it’s tested. And, just like with a breath test, officers can make mistakes in how they administer the test.
Why is attacking the blood test results such a big deal?
A blood sample is often the single biggest piece of evidence against you in a DUI case. California has two main DUI laws: 23152(b), which says that you had a blood alcohol concentration (BAC) of .08% or higher while driving. A blood test makes it easy to prove that your BAC was over the limit, or that you had drugs in your system, making it easy to convict you.
Without the blood test, the prosecutor has a much harder job. They can still convict you under 23152(a), but only if they can prove you were physically or mentally impaired by a substance while driving. Whether you were “impaired” is a subjective call and hard to prove in court. (In fact, having a test result is so important in DUI cases that it is actually illegal to refuse the blood test.)
In other words, fighting the blood test can make the difference between getting convicted and walking free.
What if I really was drinking/using drugs? Can I still fight the blood test?
Yes, and this is common. The law doesn’t state that you have to be stone sober to get behind the wheel. It simply states that your BAC must be below .08% and that you aren’t impaired by alcohol or drugs. Many people who fight and win their DUI cases did have some drinks, or did use drugs, but simply weren’t over the limit.
What are the best strategies for attacking the blood sample results?
Strategies can include:
- Title 17 Violations. California law includes a large set of regulations for how DUI blood samples are gathered, stored and tested. These regulations make sure that officers do not use an alcohol-based swap before taking the blood sample, and they ensure that the blood does not ferment or change chemically while waiting to be tested. If any of these protocols was broken, your blood test result may not be valid.
- Rising BAC: If there was a long delay between when you were first pulled over and when you gave the blood sample, your BAC may have gone up during the extra time. This means it was lower when you were actually behind the wheel.
- Retesting the Blood Sample: By law, the state must keep each DUI blood sample in storage for at least one year after it’s drawn. This means that your DUI lawyer can request that the blood sample be “split” and half of it turned over to a lab of your choosing for independent testing. If the result is different than the state’s result, you may be able to discredit the evidence.
It is also possible to defend against the claim that you refused the blood test.
None of these strategies has to prove that you were sober and drug-free. They only have to call into question the accuracy of the blood test. If so, the judge may agree to suppress the test results as evidence, substantially weakening the case against you. This could get the prosecutor to drop the case or reduce the charge to something much less serious.
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