If law enforcement officers did not follow all the Title 17 rules when administering your DUI blood test, breath test or urine test, the results of the test may not be accurate and you could get them suppressed.
If you are arrested for DUI you are likely to be subjected to either a DUI breath test, blood test or urine test. These tests are used to determine your blood alcohol concentration (BAC) or the presence of drugs in your system. In many cases, the test results are the biggest piece of evidence against you, especially if they show a BAC of .08% or higher.
But there are rules for these tests. The rules are contained in an obscure section of the law known as Title 17 of the California Code of Regulations. These “Title 17” rules address exactly how the tests are to be carried out, and they are designed to protect your rights so that you aren’t convicted based on inaccurate test results. If law enforcement fails to follow any of the rules, your test results may not be reliable evidence.
As a result, if you discover any Title 17 violations by law enforcement—whether intentional or unintentional—you can build a very strong defense against your DUI charge.
What are the Title 17 Rules for DUI Breath Tests?
Breath tests are used exclusively when you are accused of a DUI involving alcohol, never for drugs. Officers must observe the following Title 17 procedures for breath tests:
- They have to observe you for at least 15 minutes before the test, to make sure you don’t eat, drink, smoke, or shows signs of vomiting/regurgitation
- The breath has to come from deep in the lungs (“alveolar air”), not from the mouth
- The breath test device has to be calibrated every 10 days, or every 150 times it is used—whichever is more often
- The person administering the test (the “operator”) has to have been properly trained on how to use this specific breath test device
Note that these rules apply to a DUI breath test given after your arrest. In some DUI cases, you may have been asked to give a voluntary breath sample on the roadside using a portable “breathalyzer.” Officers might not always follow Title 17 rules for these roadside tests.
What are the Title 17 Rules for DUI Blood Tests?
Blood tests are used for both alcohol-related and drug-related DUI cases. Officers must observe the following Title 17 procedures for blood tests:
- Only a trained, authorized technician can perform the test (the “blood draw”)
- The vial that the blood will be placed in must contain specific amounts of both anticoagulant (to prevent clotting) and preservative (to present spoilage). Without these substances, blood can clot or ferment, which could lead to a false high reading of BAC or change the chemical composition of the sample
- The preservative and anticoagulant in the vial must not be expired
- The technician cannot use an alcohol-based substance to clean/“swab” the skin before the blood draw
- After the draw, they must make sure the blood is properly mixed with the anticoagulant and preservative
- The blood sample must be properly stored at all times
- The blood sample must be kept for at least 1 year so that it can be re-tested by an independent laboratory later if needed
Blood tests are often considered more reliable than breath or urine tests. But they can still give wildly inaccurate results if the procedures aren’t followed.
What are the Title 17 Rules for DUI Urine Tests?
Urine tests are used primarily to test for drugs in the system, not alcohol. Officers must observe the following Title 17 procedures for urine tests:
- The person giving the urine sample must first “void” their bladder (urinate) prior to the testing
- Officers must then wait at least 20 minutes
- Then the subject must urinate a second time, and this second one is collected and used as the test sample
- The urine sample must be properly stored at all times
- The urine sample must be kept for at least 1 year so that it can be re-tested by an independent laboratory later if needed
Urine tests are the least reliable of all chemical test methods, and are mostly used only if a breath or blood test is not available.
Other Title 17 Rules
Title 17 is a long, very detailed section of the code of regulations. In addition to the rules above, it sets down procedures for every detail of the testing and sample storage processes. For example, even the margin of error that a lab must fall within is mandated by the law. Your DUI lawyer will be able to review all the procedures used in your case, including the history of the lab or testing device in question, and check for any irregularities.
DUI lawyers can and do call lab technicians as witnesses at DUI trials to establish exactly what went wrong with a specific sample. They can also supboena the data for your breath test machine, looking at how it performed over thousands of tests to see if it provides accurate results. If there was a Title 17 violation, an experienced lawyer will find it.
What happens if there was a Title 17 violation in my DUI test?
If there was a Title 17 violation, you don’t have to prove that your test result is definitely wrong. The very existence of the violation indicates that it could be wrong, and that it’s not very good evidence. This can dramatically change your case:
- The prosecutor may worry that they cannot convict you, and offer you plea bargain
- The jury might decide the case against you isn’t strong enough, and find you not guilty
- The charges against you could be dropped altogether, with no trial
One small irregularity in the testing procedures could mean you win your case.
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