When you are charged with a DUI there are several important factors that influence the outcome of your case. In the following sections, we will answer various questions you may have revolving around blood split motions. Vista DUI Attorney Law firm has the experience and expertise to help you exercise this motion in order to help you with your pending DUI case. As soon as you get arrested, we advise you to contact an attorney or seek legal advice before submitting to any tests. That will minimize the chances of tampering and could help build a stronger defense.

What are Blood Split Motions According to California Law?

In simple terms, California law allows for a driver taking a DUI blood test to take part of the sample for independent testing. The defense files what is known as a blood split motion. Because of this, blood tests for a DUI harbors superiority to some extent over the breath test. Mostly because the breath test has no capabilities of having samples stored for later use. However, before getting into more details, it is essential to understand the origin of blood splits. Mainly, title 17 of the California Code of Regulations serves as the guiding principle. It further provides information that when a urine test gets conducted, there should be a urine split. According to California Law, at the point of arrest blood samples get stored in two separate containers. One is used in testing for BAC (Blood Alcohol Concentration) while the other gets stored for later use should the driver charged with DUI want to undertake an independent test. It should, however, be noted that this only takes place should the driver agree to have the blood test as opposed to other tests.

Naturally, a driver is required to undergo a blood test if the police officer reasonably suspects the act of operating vehicles under the influence of drugs (DUID). Secondly, a blood test may get sanctioned in the absence of equipment used in breath tests. Lastly, blood tests take place where the driver is not in a position to take a breath test. Such situations include where they have medical conditions that do not allow them to take a breath test, the driver is unconsciousness, or have lost their lives. Most importantly, it should be understood that still those with medical conditions not allowing for a blood test cannot be forced to undertake one. No one can get forced into a blood test, say for situations where the police obtain a warrant. Still, there are provisions for chemical test refusal, with a mandatory punishment of 1-year driver’s license revocation. Hence, there is an intricate underlying protocol that must be followed.

When Should Police Officers Conduct a Blood Test?

At this point, it is relatively unclear on when the police officer should take a blood test. However, before learning when such a requirement is mandatory, it is good to know that one can utilize the 4th amendment in defense of DUI charges. For instance, if your attorney files a motion as per California Penal Code 1538.5, the burden of proof goes to the prosecution. It is then the prosecutor’s responsibility to prove there was a need to conduct a blood test. Based on standards set in 1966 under the 4th amendment, the test should not cause any distress and should be conducted as per the accepted medical procedures. In line with this, a DUI charge can get thrown out if it was not conducted as per guidelines and some distress got caused to the defendant.

Further legislation has refined conditions under which the test gets conducted. For example, California Law even allows for taking a blood sample in jail. Most recently, a 2013 decision, the People vs. Cuevas gives several conditions where a blood test is tolerable as follows.

  • Where the officer testifies the drawing of blood got done voluntarily
  • Testimony from the officer indicating that they believe the person in charge of blood drawing was a qualified and registered blood technician or phlebotomist.
  • Presence of testimony from the officer affirming that the needle used was gotten from a new and sealed package.
  • The officer testifies that you did not show any signs of discomfort or distress.
  • The officer testifies that the area of blood drawing got cleaned before extraction.
  • The officer testifies having been present throughout the whole process.
  • An officer’s testimony indicating that the blood drawing area got well bandaged after the process.

In cases where such testimonies are not available, or the officer testifying could not affirm some of the listed proclamations, a DUI charge could easily get dismissed. Even in a case where the prosecutor forgets to ask a question to the effect of the affirmations above, the defense can quickly get an acquittal by merely not asking anything. The moment the blood split motion’s proof of burden shifts to the prosecution side, the situation gets relatively easy.

Motions and Laws Relating to Blood Split Motions

As you might guess, there is nothing as a ‘breath split.’ One may, therefore, wonder whether there are other samples that fit the splitting provisions. Well, not many are available, say for the urine split motion. It is a requirement that in situations where there are urine samples collected, they should be divided into two for future independent testing at the defendant’s will. However, there are several provisions as per title 17. Quite naturally, the sample collected should be enough for more than one test. Then, a collection should have taken place within 20 minutes after the defendant’s first bladder emptying. Lastly, the sample should get retained for up to one year after collection. Nonetheless, it is worth noting that urine tests rarely get sanctioned. Perhaps so, only in cases where the defendant cannot take the other tests on medical grounds. That aside, there are several memoranda relating to blood split motions.

  1. Memorandum Supporting the Defendant Motion in Limine, Introducing Partition Ratio Evidence: the partition ratio gets defined as the relationship between the alcohol in the blood and that in the breath. However, such an argument regarding inconsistencies in a partition ratio is not recognized in some jurisdictions. In this particular case, it is only applicable where there was a complementary breath test, or the breath test was used to determine blood alcohol levels. In such cases, the breath test results usually get multiplied by a partition ratio of 2100. Still, people have varying partition ratios determined by weight, food consumed among other factors. Such discrepancies, though not so common lately can be used to show unreliability in tests.
  2. Preliminary Memorandum Supporting the Defendants Motion to Impede Retrograde Extrapolation Evidence: retrograde extrapolation refers to the questionable act of looking at chemical evidence at certain hours and predicting what would have been the reading at an earlier time. Say, for instance, looking at results past midnight and estimating a probable reading at 2 hours to midnight based on assumptions. The first assumption being alcohol elimination in the blood system over time, and the second being that the elimination is taking place at a given rate. All of which are subject to marginal error. For the second assumption, the elimination rate ranges from 0.15-0.2 per hour. Unfortunately, the first assumption is quite vague as to determine whether a person is eliminating, one would have to know when they started drinking, when they stopped, what meal they had, among other factors. The prosecution uses such assumption to show the defendant was more drunk at the time of arrest.
  3. Memorandum Supporting the Defendants Motion Before jury to Exclude Tolerance Evidence: at times the prosecution introduces evidence of tolerance via a well-versed expert. The point mainly is to explain what would generally seem as abnormally high readings. In such cases, it is explained that the defendant has a high tolerance level, thus the reading.
  4. Preliminary Memorandum Supporting the Defendants Motion to Disqualify test Evidence in Field Sobriety: while the general public and even justice system have been led to believe field sobriety tests work, that is unfortunately not the case. Numerous studies have shown that various beliefs on which the whole idea gets based, does not make much sense.
  5. Memorandum Supporting the Defendants Motion in Limine to Disqualify Misconduct of the Prosecutor: such a move serves to pre-empt any misconduct on the prosecutor’s part. Therefore, should they be in violation, they got the warning in advance, and that could lead to a mistrial.

Matters legality, Vehicle Code 23152(a) guide on driving under the influence charges, while Vehicle Code 23152(f) touches DUID (Driving under the influence of Drugs). Vehicle Code 23152(g) is somewhat superior combining both drugs and alcohol influence. Nonetheless, the prosecutor still has an uphill task of proving that indeed the defendant in a manner affected by the drugs consumed. It gets quite hard in the case of drugs as there is no conventionally agreed upon amount resulting in impaired driving. In simple terms, so long as one’s BAC does not go above the limit, the chemical test will in no way prove impairment. It is then that other factors such as those listed in the various memoranda come into play. The fundamental goal is to prove to the jury that while the BAC level may not have gone beyond the limit, the individual’s judgment could get affected even at lower levels.

How Does Filing a Blood Split Motion Affect the Case?

In filing a blood split motion, the attorney hopes to prove a violation of Title 17. The attorney could ride on the unreliability of evidence where the blood sample was not properly handled or stored. It is often assumed that external forces tampered with the sample, hence giving biased results. Take for instance a situation where one weighs 160 pounds. Such a person is capable of taking more than four beers. However, should they do that at the local bar and get stopped on the way home, the BAC reading might be a bit high owing to alcohol residue in the mouth. However, a blood split motion could come to their rescue if minor details such as blood coagulating are found to have taken place. An occurrence as simple as blood fermenting could give an unfavorable result. Hence, the importance of having another sample for testing. Take another example where an individual is found to have surpassed the Blood Alcohol limit in the first test but a second test proves otherwise. In the two examples, acquittal is imminent.

Still, some people wonder whether the results from the second test might go against them in case of a higher second BAC reading. The truth is, even if the results went against you, your case would not get affected negatively. Unlike the prosecution, your defense has no obligation to disclose blood test results. As such, they can withhold unfavorable results and pursue other lines of defense. Take note that there are several charges related to DUI driving. Such charges include the California Vehicle Code 23152(b) that prohibits driving under the influence with a BAC level of 0.08% or higher. Other relevant laws include Vehicle Code 23140 that prohibits minors from driving under the influence with BAC of 0.05% or higher, Vehicle Code 23152 (d) and (e) that govern commercial DUI at a BAC of 0.04% or higher, and DUI by limo, ride sharing/taxi drivers at 0.04% respectively.

How Blood Split Motions Can Be Used in Defense Against DUI Charges

It is important to note that one is not required to test the second sample on a mandatory level. However, whether or not you choose to have your sample tested, the prosecutor has the right to introduce evidence in accordance with the test of the first sample. That said, there here are several ways through which you attorney can use the blood split motion in your favor.

  1. Arguing that the Defendant had a BAC Level Below 0.8% When Driving: as explained earlier, simple factors could spike the BAC levels considerably. Take for instance a defendant that had a BAC of 0.9%. However, on further investigating and testing the second sample, it is determined that the BAC level was 0.7%. Without a doubt, that would lead to an acquittal.
  2. Sample Contamination: in a situation where on being stopped the officers note the presence of other drugs other than alcohol, they call for a blood test. For example, if found to be in possession of marijuana, the officers request a blood test. Should such a test get conducted, the attorney could ask for an independent test in pursuit of contaminants. If present, they could successfully lobby for a DUI plea bargain.
  3. Sample Switching: for anyone too sure that their BAC results were erroneous, a sanctioned retesting could prove beneficial. At times, samples get mixed up, and that could lead to erroneous readings.
  4. Improper Storage: when it comes to storage, the sample has to be stored for a period of not less than one year. It is during this period that attorneys can file blood split motions. In case the sample drawn is not enough for a split, this can get used in favor of the defense. Also, cases where the government does not provide samples in a timely manner, work in favor of the defense.
  5. A High BAC Reading does Not Necessarily Mean You Drove Drunk: it is probably clear by now that blood alcohol concentration levels rise over time. Further to this, there could be accelerating factors such as what you had eaten. That said, the lapse between when you get arrested and time of sample taking and testing could see a significant rise in the blood alcohol concentration level.
  6. Errors While Testing for Other Drugs; take for example the marijuana example given earlier. Where there is the presence of other drugs, the blood test may not conclusively determine concentration levels. The test merely confirms the presence.

Generally, it is assumed that the prosecution’s results are accurate. Hence, it the job of the defense team to poke holes into any provided evidence. An effective way of achieving this is via the casting of doubts in reference to the accuracy of the chemical test results as illustrated above.

Find a Vista DUI Attorney Specializing in Blood Split Motions Near Me

With plenty of details involved, it is imperative that the defendant gets well-versed attorneys. Even with the efficiency and favor brought about by blood split motions, without competent attorneys, you might not get desired results. Well, you do not have to look too hard as Vista DUI Attorney Law Firm is more than capable of helping you get the best outcome. Call our Vista DUI defense attorney at 760-691-1540 today and speak to our qualified attorneys about your DUI case.