Legality of Blood Draw in DUI Defense in Los Angeles

February 16, 2016

DUI Blood TestDUI Blood Test is a hot area of litigation in courts throughout the country.  In Schmerber v. California, a 1966 decision by the Supreme Court, the court decided constitutional legality of a DUI test.  Here,

we explain what makes a DUI Blood Test illegal even when you agreed to the blood draw.

Here we further provide a guide to the questions to be asked (or not to ask) during a search and seizure hearing to suppress the DUI test results.

If you are arrested for a DUI, the police tried to get a blood or a breath test to see how much alcohol you have in your body.  The Legal Blood Alcohol Level is .08% BAC.  A person who is asked to provide a sample is given a choice, a DUI blood test or a DUI breath test.  If you agreed  and the results are above the legal limit, the state of California will file criminal charges against you.  In court, you can challenge blood test by using the 4th amendment arguments.  The process starts with your attorney filing a motion under California Penal Code 1538.5.  Once the motion is filed, the burden switches to the government to show that the search of your body (taking blood test) is justified.

In 1966 Schmerber court decided that the procedure of a DUI blood test is permissible because it carries little or no risk of trauma or pain.  Also, Schember court pointed out that the DUI blood test, have to be done according to the accepted medical practices.  Thus, if the DUI blood test was not done according to the accepted medical practices or if you suffered a lot of trauma and pain, the DUI blood test results can be thrown out for violation of 4th amendment.

Recent case law in California further established the standard for legality of a DUI blood test.  For example, California law permits the blood to be drawn in a jail station.  Also, pursuant to People v. Cuevas, a 2013 decision, the DUI blood test is permissible when:

(1) Police officer testifies that he observes DUI blood test draw.

(2) Police officer testifies that he believed the person who took the DUI blood test to be a qualified phlebotomist or a blood technician.

(3) Police officer testifies that you did not exhibit any pain or discomfort.

(4) Police officer testifies that blood draw was done in a cooperative manner

(5) Police officer testifies that needle used for DUI blood test came from a sealed package.

(6) Police officer testifies that the area of needle insertion was cleaned before the DUI blood test needle insertion.

(7) Lastly, the police officer testified that area was bandaged after the blood extraction.

If the police officer was not able to testify to these elements of the blood draw, the results of the DUI blood test can be thrown out.  More importantly, because the burden to show compliance with the 4th amendment is on the government, if the prosecutor forgets to ask the above questions, defense can simply not ask anything on cross and win the motion.

Los Angeles DUI attorney is here to help you win your DUI case.  Our office near Van Nuys DUI court and near Metropolitan DUI court allows us to interact with local prosecutors daily and get the best results for your Los Angels DUI case.  We are ready to answer any questions you have, just call us toll free or local.  We provide quality defense at affordable price and will not refuse any reasonable payment plan.  Call us (818) 921 7744 anytime to talk to one of best Los Angeles DUI attorney directly.

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One response to “Legality of Blood Draw in DUI Defense in Los Angeles”

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