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Chain of Custody

Definition: Chain of custody, in legal contexts, refers to the chronological documentation or paper trail, showing the seizure, custody, control, transfer, analysis, and disposition of physical or electronic evidence.

Now how can this relate to DUI cases? Because, in order for a DUI blood test result to have any evidentiary value in court, a proper chain of custody must be kept.  The prosecution must lay a proper foundation in order to admit blood test results in court.

Chain of custody documentation must be maintained at all times, and the chain of custody must remain intact. In forensic science, the specimen label, specimen envelope, and the laboratory’s internal chain of custody all help establish the integrity of the specimen. The Federal Government requires that their standardized Custody Control Form be used, and the control and accountability of specimens be maintained at all times. Regardless of the agency, the requirements are universal: every individual in the chain must be identified, and the date and purpose for access to the specimen must be documented by the individual handling the specimen. Since the chain of custody begins from the start of the blood draw, procedures must be established to safeguard the identity of the specimen vial and to prevent any possible mix-up of specimens in multiple-draw situations. Proper chain of custody documentation shows who handled the specimen and where the specimen was located at all times, using the “Z formation.” The Z formation is named because of the zigzag path the chain follows. That is, the format states that custody goes from A to B, from B to C, from C to D, etc. Thus, the Z formation always has the same name or location in the “to” entry as in the immediately following “from” entry.

EXAMPLE

Proper Chain of Custody; Z Formation

Improper Chain of Custody

The improper chain of custody leaves gaps in the chain. The example in this chart begs the following questions:

• What did Mary do with the blood?
• Did Mary put the blood in the secure refrigerator?
• When did Mary put the blood in the refrigerator?
• Did Mary leave the blood on a counter top for several days?
• Where was the blood between 1/1/04 and 5/7/04?

How Can Chain of Custody Gaps Be Useful for a DUI Defense?

Any time the blood sample changes hands; a document must be signed and dated, with the time of receipt acknowledged.  This is to ensure that someone is responsible for the sample at all times, to prevent any chances of tampering with the evidence.  Some state statutes specify where the blood sample is to be kept and stored during transport, as well as the timing requirements.  If a sample does not comply with the statute’s procedures, the judge may determine the BAC results to be inadmissible.  Additionally, the prosecutor may even decide to dismiss the case.

For a sample to be admissible, the prosecution bears the burden of establishing:

• The person who drew the blood;
• That the person who drew the blood was qualified to do so;
• The time and location the sample was taken;
• The circumstances under which the sample was obtained;
• The laboratory technician who analyzed the sample;
• The qualifications of the lab technician;
• That the sample was accounted for the entire duration of testing
• That the testing instrument the sample was analyzed on was properly calibrated and maintained;
• That the method of testing was an established method commonly accepted in the field;
• That the sample was properly preserved and stored prior to testing and during transport.

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Inside the Lab

If you are pulled over and arrested for driving under the influence of alcohol or drugs, you will likely be asked to submit to blood alcohol tests, typically in the form of a breath test or blood draw.  While chemical breath tests may be administered by trained police officers at the station, the rules are very different when it comes to blood draws. You may think that police officers are the ones doing any and all of the parts of the tests when it comes to DUI offenses, but this is a common misconception.

The proper operation of a forensic laboratory is a complex process that integrates management functions and scientific activities. The forensic process begins with the proper collection of the specimen, and continues through to the reporting of results. Thus, the proper management of a laboratory is important. However, the performance of the forensic process can have an even more significant impact on the reliability and quality of the analysis of evidence. Private organizations, the federal agencies (e.g., the Department of Transportation, the Substance Abuse and Mental Health Services Administration, and the Department of Health and Human Services), and State and County crime labs all have procedures in place to cover all aspects of the process.

All laboratories, whether clinical or forensic, develop procedures for the smooth and efficient operation of their laboratory. These guidelines are generally documented in the laboratory’s Standard Operating Procedure (“SOP”).

At minimum, a forensic laboratory must have guidelines for the following:

Preparation of the evidence collection kits.

• Collection of the evidence.
• Chain of custody.
• Receipt of the evidence at the laboratory.
• Storage and security of the evidence.
• Analysis of the evidence.
• Reporting of the analytical results.
• Any related activity.

The umbrella under which the laboratory operation is conducted is a set of guidelines published by the procedures of Good Laboratory Practice (GLP). The GLP guidelines help ensure that the laboratory’s results are accurate and reliable.

The GLP sets out the following:

• A director who oversees the project or testing procedure.
• Quality Assurance (QA).
• Qualified personnel.
• Maintenance of raw data.
• A Standard Operating Procedure (SOP).
• Regulation of reagents and controls.
• Maintenance and calibration of the instruments.

Who is Authorized to Take a Blood Sample?

Police officers have neither the training nor legal authority to be the ones who physically conduct blood draws pursuant to a DUI arrest. While there are no general rules on the qualifications of those people authorized to draw a blood sample, the only requirement is that a clinical laboratory that is licensed and approved by the California Department of Health must perform the actual testing of the blood. 

What Happens Once the Blood Is Drawn?

Collection of the urine or blood specimen generally starts with the collector/phlebotomist opening up a pre-packaged laboratory collection kit. For blood specimens, the blood kit generally contains one or two “grey-top” blood collection tubes, a non-alcoholic swab for cleaning the injection site prior to blood withdrawal, a checklist delineating the steps the collector must follow, labels to put on the blood vials, and an evidence collection envelope, upon which the chain of custody and donor information are placed. For urine specimens, the kit generally contains a commercial urine collection jar, or one made up by the laboratory, along with a checklist, labels to put on the container, and an evidence collection envelope.

All biological specimens must be preserved properly. The blood vials must contain a preservative and an also an anticoagulant. The preservative helps maintain the integrity of the specimen by hindering the growth of microorganisms, and the anticoagulant keeps the blood from clotting. Both of these chemicals are white powders or granules which can be easily seen by the phlebotomist prior to the blood draw. The urine containers do not need an anticoagulant, since urine is all liquid. However, preservative is still necessary to keep microorganisms, which can easily enter the collection container, from producing ethanol.

How Is It Proven That The Lab Follows Protocol?

Scientists must be certain that the proper protocols were followed in the collection and transportation of the specimen to the laboratory. The scientist should evaluate the evidence, or ask the blood draw technician:

• Was the blood specimen collected using sterile needles?
• Was the blood specimen deposited in a clean, dry container?
• Was the blood draw from the vein, artery, or capillary?
• Was the blood adequately mixed with the anticoagulant and preservative?
• Did the collector note if the blood tube contained the proper amount of preservative?
• Was the vacuum seal on the tube intact (if a vacuum tube was used)?
• Was the skin cleansed properly prior to collection?
• Was the disinfectant used to clean the skin full strength or diluted?
• Did the disinfectant contain alcohol?
• Was any of the equipment used reusable, or disposable only?
• Was the identification label placed on the collection tube prior to the draw?
• Was the sample placed immediately into a sample envelope and sealed?
• When was the chain of custody signed?

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Attacking Blood Tests

Blood Is Thicker Than Water: But Is It Really On Your Side?

Blood tests for alcohol are generally perceived to be more accurate than breath or urine tests. The primary reason for this belief is that breath tests and urine tests are indirect methods of determining alcohol levels in blood, while blood analysis is considered to be a direct method. If you want to determine an actual alcohol level by a breath or urine test, from a science perspective, the result must be converted to a blood value by using ratios. However, this may not be required by the law, because the law may define the offense based upon an amount of alcohol in the breath or urine.

So how can you attack the reliability of the blood sample, you ask? A skilled criminal defense attorney will know to focus on the following aspects: 

• Attacking the blood test
  • The best defense to blood cases frequently rests inside blood vials. The reason for this is that alcohol levels in blood vials can actually increase on their own via the process of fermentation. This fact, combined with errors made in the collection process, are where most blood battles are fought in court. Although volumes have been written about the process of analyzing blood samples, in most instances there are not any compelling arguments for the defense to make about the accuracy of the prosecution’s test results. Nevertheless, the crime laboratory’s analysis process must be reviewed by a defense expert. The defense also needs to confirm the prosecution’s blood alcohol test results by retesting a portion of the sample at an independent laboratory.
• Attacking the blood sample
  • Once the steps have been taken to reanalyze the sample, there usually is no serious claim that the value produced by the crime laboratory’s analysis is wrong (except for cases where the alcohol levels are near the margins of the legal limits). On the other hand, conceding that the prosecution’s analysis was done correctly is not the same as saying that the prosecution’s analysis is correct. The issue is what was the defendant’s blood alcohol level at the time of the blood draw, not at the time of the blood analysis. (And, even more importantly, the alcohol level at the time of driving).

A skilled criminal defense attorney well-versed in DUI law will know to ask, in the most articulate and favorable to you way, the following:

• Are the test results reflective of what the alcohol content was in defendant’s body prior to the government’s agents arriving on scene?
• Did the state properly obtain and preserve the sample?
• Did the alcohol level in the sample change between the draw time and analysis time?
• More pointedly, can the proponent of the evidence, usually the prosecution, prove that the alcohol level in the sample did not change?

What Should I Do?

If you’re facing a DUI charge, the first thing you should do is call a skilled criminal defense attorney who is an expert in DUI law. Driving Under the Influence (DUI) charges carry with them the possibility of both jail time and the loss of driving privileges. As with any criminal case, a DUI defendant makes a major mistake if he attempts to make their way through the system without an aggressive criminal defense lawyer to stand up for their rights. Contact Monder Law today for a free San Diego DUI attorney initial consultation regarding your case. Vik Monder represents clients in throughout San Diego.

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Defending Blood Tests

You Cannot Drown Truth in Seas of Blood

Blood tests for alcohol are generally perceived to be more accurate than breath or urine tests. The primary reason for this belief is that breath tests and urine tests are indirect methods of determining alcohol levels in blood, while blood analysis is considered to be a direct method. If you want to determine an actual alcohol level by a breath or urine test, from a science perspective, the result must be converted to a blood value by using ratios. However, this may not be required by the law, because the law may define the offense based upon an amount of alcohol in the breath or urine. Because of the perceived reliability of blood tests, trials challenging the validity of blood tests occur less frequently than other methods of alcohol testing.

Methods Used to Analyze Blood Samples:

Two threshold determinations are necessary in the process of reviewing the analysis of a blood alcohol test result:

• Was the sample analyzed by a forensic laboratory or by a hospital or clinical laboratory?
• Was whole blood was analyzed, or was plasma or serum analyzed?

Generally, a forensic laboratory will perform a gas chromatography test on whole blood. Frequently a hospital or clinical laboratory will perform immunoassay testing on plasma or serum. Whole blood is blood without any separation of blood cells or without any clotting done to the blood. A forensic laboratory rarely performs analysis on anything other than whole blood. However, occasionally a hospital or clinical laboratory will test the alcohol content of plasma or the serum portion of the blood sample instead of whole blood. The primary reason forensic laboratories test whole blood is that the law prohibits driving with a certain amount of alcohol in blood. Blood is uniformly interpreted to mean whole  blood. If a plasma or serum sample is analyzed it must be converted to a whole blood value.

Defending Blood Tests:

• A good criminal defense attorney will know that the validity of the science of gas chromatography is good science. The DUI attorney will make it clear to the jurors and judge that that gas chromatography is a well accepted methodology.
• Because blood tests are a direct measurement of impairment, blood tests come to court wrapped in a certain amount of credibility. Judges, and some jurors, are predisposed to accept the results of blood analysis. A good criminal defense attorney will build on this credibility.
• Similarly, a skilled and well connected attorney will hae an expert testify as to all the preparatory steps that were done before the sample was analyzed by the gas chromatograph. The DUI attornney will make sure the expert discusses the maintenance, calibration and accuracy checks that were done before the testing process commenced.

These are just some of the few methods in which a skilled attorney will defend the credibility of the blood test. As you can see, this can be a technical and confusing process. If you’re facing a DUI charge, the first thing you should do is call a skilled criminal defense attorney who is an expert in DUI law. Driving Under the Influence (DUI) charges carry with them the possibility of both jail time and the loss of driving privileges. As with any criminal case, a DUI defendant makes a major mistake if he attempts to make their way through the system without an aggressive criminal defense lawyer to stand up for their rights. Contact Monder Law today for a free San Diego DUI attorney initial consultation regarding your case. Vik Monder represents clients in throughout San Diego.

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More Than You Ever Thought You Would Know About Urine Tests

The basic definition for driving under the influence (DUI) or driving while intoxicated (DWI) is the crime of driving a motor vehicle while impaired by alcohol or other drugs (including those prescribed by physicians), to a level that renders the driver incapable of operating a motor vehicle safely.

If you’ve been charged with a DUI or DWI, one of the ways to collect evidence against you will be with a urine sample. This post will provide information on how alcohol affects the body, spreads via the blood stream, and is eventually used as a tool to convict you with a DUI/DWI charge.

The Path Into the Urine: A Physiology Sampler

Alcohol is very hydrophilic (water loving), and once absorbed into the system distributes in the body based on the water concentration of the organ/substance. The blood travels to the lungs where there is an exchange of gasses, and alcohol is passed from the blood to the lungs. At the same time, the blood is filtered in the kidneys, and passes into the formation of the urine.

The kidneys perform a necessary function in the human body. Metabolic waste products and excess water and sodium in the blood are eliminated from the body via the kidneys. Blood enters the kidney via the renal artery, which branches to feed segments of the kidney. Blood is filtered by the kidney though a structure called the nephrons. Each of the almost one million nephrons receives blood vessels into their round structure, called the Bowman’s capsule.

The capsule filters out blood cells and large molecules (larger than 70,000 MW) such as proteins, keeping these substances in the blood stream. Water, glucose, amino acids, urea, sodium, chloride, and potassium are filtered at the glomerulus (a tuft of capillaries). The clear filtrate leaves the Bowman’s capsule to a structure known as the loop of Henle, which extracts many of the substances, such as glucose, amino acids, sodium and potassium and allows them to be reabsorbed. In fact, about 2/3 of that filtered is reabsorbed, including about 80% of the filtered water.

The fluid from the nephrons then passes into a collecting duct, which passes the fluid through the kidneys. The formed urine flows down the muscular tubes known as the ureters, and through a sphincter into the bladder. As urine accumulates in the bladder, the bladder walls expand, eventually sending a nerve signal to the brain to void the bladder. Generally, the urge to urinate appears when there is about 150-300 ml of urine in the bladder. In 24 hours, 600 to 2500 ml may be excreted.

After absorption into the blood, alcohol begins to be metabolized in the liver. Over 90% of the ingested alcohol that circulates in the blood stream is oxidized in the liver. Almost 10% is excreted unchanged from the body, including via the lungs or urine. About 0.7-1.5% of the amount consumed is excreted unchanged in urine.

Collecting the Sample

The conversion ratio of UAC to an equivalent BAC is dependent on the quality of the urine specimen collected. By far the most acceptable method of collection is to collect two samples, with the second void collected at least 20 minutes from the first void. This is because it takes time for the formation of urine from the blood filtering through the kidneys, and the urine alcohol level lags behind the blood alcohol level about 20 minutes. The second void is then tested and converted from the urine alcohol concentration (UAC) into an equivalent BAC.

The Reliabilty of the Sample

The use of urine as a forensic specimen is questionable. A urine analysis clearly can show the presence of alcohol, and recent consumption of alcohol. As such, it is a useful specimen in probation cases, or cases where the subject is prohibited from alcohol consumption. However, in determining driving impairment, the analyst should interpret urine specimen results with caution.

What Should I Do?

When facing a DUI arrest and offered a breath, blood, or urine test ALWAYS take the urine test. Why? Because of the three tests, urine tests are agreed to be the least reliable (making it more likely to be unadmissable as evidence against you).

If you’re facing a DUI charge, the first thing you should do is call a skilled criminal defense attorney who is an expert in DUI law. Driving Under the Influence (DUI) charges carry with them the possibility of both jail time and the loss of driving privileges. As with any criminal case, a DUI defendant makes a major mistake if he attempts to make their way through the system without an aggressive criminal defense lawyer to stand up for their rights. Contact Monder Law today for a free San Diego DUI attorney initial consultation regarding your case. Vik Monder represents clients in throughout San Diego.

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Written in Blood

The basic definition for driving under the influence (DUI) or driving while intoxicated (DWI) is the crime of driving a motor vehicle while impaired by alcohol or other drugs (including those prescribed by physicians), to a level that renders the driver incapable of operating a motor vehicle safely.

If you’ve been charged with a DUI or DWI, one of the ways to collect evidence against you will be via a blood sample. This post will provide information on how alcohol affects the body, spreads via the blood stream, and is eventually used as a tool to convict you with a DUI/DWI charge.

How Alcohol Spreads Through the Body

Once absorbed in the blood stream, alcohol distributes in the body to the various organs and tissues in proportion to their water content and blood supply. About 95 to 98% of the alcohol consumed is metabolized via enzymatic oxidation, and the remainder is excreted unchanged in other body matrices.

The Evidence Collected

Breath, blood and urine are the predominate specimens in DUI/DWI investigations, with recent interest building in using saliva. However, the scientific literature regarding the determination of impairment or influence almost universally correlates performance with a blood alcohol concentration (BAC). Thus, all states have established the legal limit in terms of blood, with alternative specimens such as breath or urine allowable after conversion to an equivalent blood alcohol result, or as an independent specimen with their own concentration units (e.g. 0.08% gm/100 mL blood or gm/210L breath). Since whole blood is generally cited or assumed, analysis of alternative specimens must include the appropriate conversion to the corresponding BAC.

Whole blood is the only specimen that can give a reliable BAC (assuming correct collection, storage, and analysis). It is the whole blood that travels through the body to the brain, where alcohol concentration in the blood and the brain are in equilibrium. Since alcohol effects are manifested in the brain, whole blood is used to correlate a particular alcohol level with projected alcohol effects. This is critical information for your criminal defense attorney, as they can argue that the specimen of blood collected is not reliable, if the prosecution is unable to prove that it was whole blood.

Whole blood is a complex mixture of red blood cells (erythrocytes), platelets (thrombocytes), and white blood cells (lymphocytes and phagocytes). Each type has a specific function:

• Red cells take up oxygen from the lungs and deliver it to the tissues.
• Platelets participate in forming blood clots.
• White cells (lymphocytes) are involved with immunity.
• Phagocyte cells ingest and break down microorganisms and foreign particles. Together with lymphocytes they make up the white blood cells.

What Can Your Attorney Do With This Information?

An experienced criminal defense/DUI attorney can challenge a DUI blood test in your case because even toxicologists cannot always be certain that a driver’s BAC was above or below a particular limit. There is usually a variance of 3%-10% within where a driver’s actual BAC was when they were driving. This means that even though you might have tested at 0.08%, your actual BAC when you were driving might have really been only 0.04%.

And in California, your DUI attorney can usually file a motion with the court to get your blood sample tested by an independent laboratory.

The state of California has implemented tough drunk driving laws, including an implied consent law where a person arrested for DUI must submit to a DUI blood test or have their driver’s license suspended. A DUI conviction can be stressful, expensive, and restrictive. Call the Monder Law Group today and have someone on your side.

The basic definition for driving under the influence (DUI) or driving while intoxicated (DWI) is the crime of driving a motor vehicle while impaired by alcohol or other drugs (including those prescribed by physicians), to a level that renders the driver incapable of operating a motor vehicle safely.

If you’ve been charged with a DUI or DWI, one of the ways to collect evidence against you will be via a blood sample. This post will provide information on how alcohol affects the body, spreads via the blood stream, and is eventually used as a tool to convict you with a DUI/DWI charge.

How Alcohol Spreads Through the Body

Once absorbed in the blood stream, alcohol distributes in the body to the various organs and tissues in proportion to their water content and blood supply. About 95 to 98% of the alcohol consumed is metabolized via enzymatic oxidation, and the remainder is excreted unchanged in other body matrices.

The Evidence Collected

Breath, blood and urine are the predominate specimens in DUI/DWI investigations, with recent interest building in using saliva. However, the scientific literature regarding the determination of impairment or influence almost universally correlates performance with a blood alcohol concentration (BAC). Thus, all states have established the legal limit in terms of blood, with alternative specimens such as breath or urine allowable after conversion to an equivalent blood alcohol result, or as an independent specimen with their own concentration units (e.g. 0.08% gm/100 mL blood or gm/210L breath). Since whole blood is generally cited or assumed, analysis of alternative specimens must include the appropriate conversion to the corresponding BAC.

Whole blood is the only specimen that can give a reliable BAC (assuming correct collection, storage, and analysis). It is the whole blood that travels through the body to the brain, where alcohol concentration in the blood and the brain are in equilibrium. Since alcohol effects are manifested in the brain, whole blood is used to correlate a particular alcohol level with projected alcohol effects. This is critical information for your criminal defense attorney, as they can argue that the specimen of blood collected is not reliable, if the prosecution is unable to prove that it was whole blood.

Whole blood is a complex mixture of red blood cells (erythrocytes), platelets (thrombocytes), and white blood cells (lymphocytes and phagocytes). Each type has a specific function:

• Red cells take up oxygen from the lungs and deliver it to the tissues.
• Platelets participate in forming blood clots.
• White cells (lymphocytes) are involved with immunity.
• Phagocyte cells ingest and break down microorganisms and foreign particles. Together with lymphocytes they make up the white blood cells.

What Can Your Attorney Do With This Information?

An experienced criminal defense/DUI attorney can challenge a DUI blood test in your case because even toxicologists cannot always be certain that a driver’s BAC was above or below a particular limit. There is usually a variance of 3%-10% within where a driver’s actual BAC was when they were driving. This means that even though you might have tested at 0.08%, your actual BAC when you were driving might have really been only 0.04%.

And in California, your DUI attorney can usually file a motion with the court to get your blood sample tested by an independent laboratory.

The state of California has implemented tough drunk driving laws, including an implied consent law where a person arrested for DUI must submit to a DUI blood test or have their driver’s license suspended. A DUI conviction can be stressful, expensive, and restrictive. Call the Monder Law Group today and have someone on your side.

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Should You Trust the Results

The scenario: You’re driving home from a dinner party, reminiscing of the great conversation, food, and company you just enjoyed. All of a sudden you see flashing lights behind you; confused, you pull over. The officer comes up to your window and after some conversation, you end up taking a breath test. The results lead to your arrest and DUI charge. But how can this be? You didn’t even drink this nigtht! This blog post will help explain how this happens and what your skilled DUI attorney will do to fight for you.

Because breath testing involves the analysis of microscopic amounts of alcohol it is critical that everything involving the breath test be done with precision and pursuant to established procedures—small variances in procedures can result in huge variances in results.

A skilled criminal defense attorney will know how to explain to jurors how a sober person can obtain a .16% breath test result. Jurors will accept the notion presented by the skilled defense attorney that a procedural error may result in some inaccuracy in the test outcome, but most jurors legitimately wonder how a routine error could possibly produce a result that is more than two times the legal limit. After all, the jurors’ own bathroom scales seldom have such error rates. To many reasonably minded jurors it seems that it would take an error of seismic proportions to take a breath test from a true value of .06%, to a reported test value of .16%. A skilled criminal defense attorney will have the answer to these understandable questions, and emphasize the common theme about small variances resulting in huge variances.

A skilled criminal defense attortney, who know DUI laws will know to first assess the calibrarion of the breath test machinery. The defense attorney will examine the calibration records of the breath machine. If you do not review the records it is difficult to object that the machine was improperly maintained. The purpose of this review is to see whether there is documentary evidence that the device was working properly. Absent this, the test may not even be admissible. (Big win for the defense!) If the records reveal that the device was not functionally properly the defense is fairly simple: the breath machine was not functioning. This is an effective defense because the prosecution must establish that the breath test has been conducted in accordance with the rules, including the successful completion of the required preventive maintenance check and the certification of the Intoxilyzer’s accuracy.

Here’s the mark of a skilled defense attorney: knopwing the difference between a calibration check and calibration. A calibration check is simply a check to see if the unit is properly measuring samples. It does not include an adjustment or calibration of the machine. The difference is similar to the difference between checking to see if your car needs a tune-up, and actually giving the car a tune-up.

If you have been arrested for suspected DUI it is imperative that you contact a DUI criminal defense attorney. You need an attorney with familiarity to the San Diego court system, and one who knows when and which arguments to make on your behalf. Call the Monder Law Group today.

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CAN THE POLICE JUST TAKE MY BLOOD?

The scenario: You’re pulled over for a minor vehicle code violation and thereafter taken to the San Diego Police Department. You’re not offered a choice of blood or breath test. The police officer tells you “We’re going to take a blood test from you and we are getting a lady here to do it,” or words to that effect. You cooperate fully. However, you were never given a choice of tests, nor did you ever consent to the withdrawal of the blood from your body. Is this okay? 

No, because in a case named Nelson v. City of Irvine, the California court ruled that requiring a DUI arrestee to submit to a warrantless test of the officer’s choosing and/or forcing the officer’s preferred blood test violates the Fourth Amendment’s general prohibition against non-consentual, warrantless searches. The Fourth Amendment of the Constitution of the United States (adopted nearly intact by the Constitution of California, Article I, Section 13, provides):

The right of the People to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by Oath or affirmation, particularly describing the place to be searched and the persons or things to be seized.

1. “For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” (Katz v. United States 389 U.S. 347, 351-352 (1967) [internal citations omitted].)
2. “ . . . searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” (Katz v. United States 389 U.S. 347, 357 fns. omitted (1967).)
3. “It is not disputed that the administration of a breath test is a search within the meaning of the Fourth Amendment and therefore subject to the requirements of that amendment.” (Emphasis added.) (Burnett v. Municipality of Anchorage 806 F.2d 1447, 1449 (9th Cir. 1986). [Citation omitted.].)
4. “To pass constitutional muster under the Fourth Amendment a search must be reasonable. Generally, a search must also be supported by probable cause, and must be backed up by a warrant, or the circumstances must fit an exception to the warrant requirement.” (Nelson v. City of Irvine 143 F.3d 1196, 1200 (9th Cir. 1998) [internal citations omitted].)
5. “In considering [warrant requirement exceptions], we must not lose sight of the Fourth Amendment’s fundamental guarantee as stated by Mr. Justice Bradley’s admonition in his opinion for the Court almost a century ago in Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746:

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.

In short, a systematic failure to advise of the choice of tests violates Federal Equal Protection Rights. The court held In re Garinger (1987) 188 Cal.App.3 1149 that proof of a systematic failure to give the advice required by V.C. §13353 (now V.C. §23612) might violate federal equal protection rights and the breath test should be suppressed as a remedy for violation of said constitutional requirements. A skilled criminal defense attorney will know that the policy of the arresting officer to compel a blood sample, preferred by the police, without advising the citizen of his statutory right to a choice of tests, violates the Fourth Amendment. It is unreasonable. Furthermore, the defendant’s right to due process and his liberty interests were violated. The blood test results must be suppressed as a result of these constitutional violations.

If you have been arrested for suspected DUI and have been tricked into submitting a blood sample, it is imperative that you contact a DUI criminal defense attorney. You need an attorney with familiarity to the San Diego court system, and one who knows when and which arguments to make on your behalf. Call the Monder Law Group today.

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California Implied Consent

What Am I Agreeing To?

California law says that if you are lawfully arrested by an officer (who has probable cause) to believe that you have been driving under the influence of drugs/alcohol, then you consent to taking a chemical test of your blood, breath, or urine for the purposes of determining your blood alcohol content (BAC). This is known as implied consent and is clearly laid out in California Vehicle Code, Section 23612(a)(1)(A):

A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.

What if I refuse the PAS test?

If you are a first time DUI offender, the penalties for refusing a chemical test are a hefty fine, imprisonment in county jail (if convicted), one year’s driver’s license suspension, and a required 9-month alcohol education program. For a second DUI and refusal your license will be revoked for two years and there will be extra jail time. A third arrest and refusal will be more jail time and license revocation for three years. Refusal to take the test also means there will be no special restrictions on your suspended license, such as the permission to drive to work.

But What if the PAS Test is Not Accurate?

This is why having a skilled criminal defense attorney, who specializes in DUI cases is critical.  A skilled defense attorney will know if the prosecutor cannot demonstrate that the result is accurate and reliable, e.g. if proper procedures were not followed, the test result is not relevant (the defense has no objection to the PAS test used for its intended purpose, i.e. the presence of alcohol). If not relevant, it is not admissible.

A skilled criminal defense attorney will know a PAS machine (as opposed by the approved breath test analyzed by a licensed and regulated instrument maintained by a licensed crime lab at a police station) does not have a slope detector, one of the safeguards to guard against mouth alcohol and contamination and false high test results. Furthermore, when the operator of the machine does not secure two breath test results within +/- 0.02% of each other, the second safeguard against contamination (mouth alcohol and possible high results) is not available. Said failure to secure two test results within +/- .02% is a failure to follow the proper training and procedures for breath testing for blood alcohol content.

Your defense attorney should know the prosecution must show that the machine is timely checked for accuracy and such checks are “to be performed by certain persons employed by a forensic alcohol laboratory or by persons who have successfully completed training in using the instrument being tested and who are called upon to use a breath testing instrument in the performance of their duties” (Title 17, §1221.4(a)(2)(A), (a)(5). “Such training must include instruction in the theory of the device’s operation, detailed procedure of operation, practical experience, use of a precautionary checklist, and a written and/or practical examination.” (Id. subds. (A)(3)(A), (B), (C), (D), (E).) The results of the periodic accuracy checks are to be used by a forensic alcohol laboratory to determine if the instrument operates as required by Title 17.” (Id. subd. (1)(2)(A).)

If you have been arrested for suspected DUI and have refused a PAS test or chemical tests, it is imperative that you contact a DUI criminal defense attorney. You need an attorney with familiarity to the San Diego court system, and one who knows when and which arguments to make on your behalf. Call the Monder Law Group today.

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History of Breath Tests

Let Me Catch My Breath!

Before the invention of the modern breathalyzer in the 1950s, determining if someone was too intoxicated to operate a motor vehicle was incredibly subjective. It took decades for law enforcement technology to catch up with one of our most pervasive crimes. This post will take you through the history of breath tests, as used by prosecutors, in the United States.

Then:

Now:

The study of human breath originated in the classic studies of French chemist Antoine Lavoisier conducted between 1774 and 1785. Aside from defining respiration as the uptake of O₂ and the output of CO₂, Lavoisier’s invention, the “gasometer,” was the first instrument to make accurate measurements of the respiration gases. In the 1850s, physician John Hutchinson modified Lavoisier’s gasometer to make the first spirometer for measuring the volume of a patient’s breath. In 1874, British physician Francis Anstie, trapped the human breath and applied colorimetric analysis to study the fate of alcohol in the body. Building on this knowledge, actual analytical analysis of expired breath for blood alcohol concentration was first proposed in the 1920’s by Bogen. [Crow, K., Batt, R., Human Metabolism of Alcohol, Volume I; Pharmacokinetics, Medicolegal Aspects, and General Interests, CRC Press, 1977.]

Early versions of quantitative breath testing machines included the Drunkometer^® (1938), Breathalyzer^® (1954), and Alkotest^® tube (1954). These early methods employed wet chemistry; generally, oxidation with potassium permanganate, potassium dichromate, or iodine pentoxide. Gas chromatography was employed in the early 1970’s, and, in 1974, infrared (IR) technology took the lead in popularity.

Breath Tests and Driving

In 1974, the National Highway Traffic Safety Administration (NHTSA) published the “Standards for Devices to Measure Breath Alcohol,” and listed devices that met the Federally mandated criteria.  State programs applying for Highway Safety Funding were restricted to using equipment listed as meeting the Federal criteria. In 1984, state programs were no longer restricted to using devices listed as meeting the Federal criteria, though most states continue to limit their consideration to equipment on the list. And in 1993, NHTSA modified their specifications, changed the levels at which the machines were evaluated (0.020%, 0.040%, 0.08% and 0.160% instead of 0.050%, 0.101% and 0.151%), added a test for acetone detection, and expanded their definition of “alcohol” to included low molecular weight alcohol such as methanol and isopropanol.

Devices

There are a variety of breath alcohol testing instruments available to a user agency. Many of the evidential devices are listed in the Federal Register Conforming Products List of Evidential Breath Measurement Devices. [NHTSA, 2002, 67 FR 62091.]

Other devices (which may also be on the Conforming Products List) include alcohol screening devices designed to give an approximation of the alcohol level, passive alcohol sensors designed to detect the presence of alcohol only, and ignition interlock devices designed to prevent a driver from starting a vehicle if a certain breath alcohol concentration (BrAC) is present. Devices which are to be used as Ignition Interlock Devices must pass the Federal Specifications. [National Highway Safety Administration, Model Specifications for Breath Alcohol Ignition Interlock Devices (BAIIDs). 1992, Federal Register, 57(67), 11772-11787.]

Breath testing technology, on modern instruments, is either via a Taguchi semiconductor, fuel cell, infrared detection, or a combination of infrared and fuel cell. All of these technologies have been in use in science for decades. However, it has only been in the last few decades that the technology has been adapted for breath alcohol testing in a law enforcement setting. By far, the most common analytical technology utilized by these applications are, metal-oxide semiconductor [SC], infrared spectrophotometry (IR) and electrochemical oxidation/fuel cells (EC). In some machines both IR and EC technologies are employed.

Types of Breath Alcohol Testing Machines

Point to Note: There are two major categories of screening test devices:

• Passive. Passive devices merely measure the air space around the suspect, and do not require the subject to deliver a breath sample directly into the device.
• Active. Active devices require the subject to blow directly into the device. Active devices are especially popular in the law enforcement field, since they are portable, low cost, and can be used in the field with ease.

Pros and Cons of Screening Devices

Pros:When it comes to roadside testers, most agencies use either EC or SC technology since the analytical unit is small and compact, allowing its use in handheld devices. These screening devices, commonly called Preliminary Alcohol Sensors (PAS), are becoming an increasingly more popular investigative tool used by police officers in driving under the influence (DUI) cases.

Cons:There is no safeguard to ensure that the tested air is essentially alveolar in composition. Thus, the device can easily be measuring a sample contaminated with mouth alcohol, and the results will be falsely elevated.

In addition, there are several chemicals in the breath that are oxidized/detected in the fuel cell/Taguchi semiconductor and contribute to a true alcohol reading. For example, acetaldehyde, the breakdown product of ethyl alcohol is found in the human breath and gives a numerical reading on many screening devices. Some screening device manuals state that their device is “alcohol specific.” This generally means that the device detects the class of compounds called “alcohols” rather than ethyl alcohol specifically. Methanol, isopropanol and ethanol, all compounds which are chemically considered “alcohols” will also generate a reading on a fuel cell device.

To further complicate matters, small amounts of ethyl alcohol and other compounds are produced in the body as a by-product of normal body functioning even without alcohol consumption. This endogenous alcohol can register 0.01% or slightly more on a screening device. This fact is especially concerning, considering some states use 0.01% as their “zero tolerance” law limit for drivers under 21, and often allows the use of the screening devices for evidence, often absent the standard procedures generally in place to ensure reliability.

As you can see, this small device is a major player in any DUI case. It is imperitive that you have a skilled criminal defense attorney on your side. Call the Monder Law Group today.