Trombetta/Youngblood in DUI case: failure to advise that breath sample cannot be retained
When police fail to preserve evidence defendants can file a motion to dismiss cases or to get good jury instructions during trial. This motion is known as the Youngblood-Trombetta motion, named after the US Supreme Court cases Arizona v. Youngblood and California v. Trombetta. Defendants can argue that their rights have been violated due to the loss or destruction of potentially exculpatory evidence by the prosecution or law enforcement.
In DUI cases, this often relates to the handling and preservation of breath, blood, or urine samples. Defendants might argue that mishandling or non-preservation of these samples denies them the opportunity to independently test the sample, undermining their ability to mount an effective defense. For a successful Youngblood-Trombetta motion, the defendant generally needs to demonstrate that the evidence was material and potentially favorable to their case and that its loss or destruction infringes their due process rights.
For example, it’s a violation of Youngblood/Trombetta when a police officer during a Los Angeles DUI investigation asks for a breath test but did not explain that the breath sample cannot be kept for re-testing. This violation can result in the dismissal of a DUI case or, if the case goes to trial, jury instructions that help you win your DUI case in Los Angeles.
More often than not, a violation of Youngblood/Trombetta will not result in an outright dismissal of your Los Angeles DUI case or dismissal of your Los Angeles Criminal Case. This is so because the government action has to be in “bad faith”. This “bad faith” standard is hard to prove because police officers will never agree that they destroyed evidence or did not explain to you your right because they wanted to hurt your chances in court or they wanted to arrest you regardless of evidence. Most violations of Trombetta/Youngblood are thus a result of poor training of the police officers.
Under California Law, the police have to admonition you in compliance with Trombetta. This is found in:
§ 23614. Required admonitions
(a) In addition to the requirements of Section 23612, a person who chooses to submit to a breath test shall be advised before or after the test that the breath–testing equipment does not retain any sample of the breath and that no breath sample will be available after the test which could be analyzed later by that person or any other person.
(b) The person shall also be advised that, because no breath sample is retained, the person will be given an opportunity to provide a blood or urine sample that will be retained at no cost to the person so that there will be something retained that may be subsequently analyzed for the alcoholic content of the person’s blood. If the person completes a breath test and wishes to provide a blood or urine sample to be retained, the sample shall be collected and retained in the same manner as if the person had chosen a blood or urine test initially.
(c) The person shall also be advised that the blood or urine sample may be tested by either party in any criminal prosecution. The failure of either party to perform this test shall place neither a duty upon the opposing party to perform the test nor affect the admissibility of any other evidence of the alcoholic content of the blood of the person arrested.
(d) No failure or omission to advise pursuant to this section shall affect the admissibility of any evidence of the alcoholic content of the blood of the person arrested.
Failure to advise of these admonitions is not a violation of due process (People v. Lyon 171 Cal. App. 3d Supp. 20). However, People v. Alvarado, 181 Cal. App. 3d Supp. 1 specifically allows jury instructions when police do not tell you or offer a blood or urine test after the breath test.
Here is a sample of pinpoint jury instructions based on Alvarado and CVC 23614:
The defendant in this case submitted to and completed a breath test. The law
requires that persons who submit to breath tests be advised by the officer that, because no
the breath sample is retained for subsequent analysis, the person can provide a blood or urine
sample that will be retained at no cost and that may be subsequently analyzed for alcohol
content by the defendant at a laboratory of his/her choosing.
If you find that this advisement was not given to the defendant you are instructed
that you are permitted to use that information as a factor bearing on the credibility of the
law enforcement authorities involved and the accuracy of the breath test results.
Using this jury instructions you can win your DUI case in Los Angeles when the police do not comply with CVC 23614. For any specific case-related questions, please call Los Angeles Criminal Defense attorney and Los Angeles DUI attorney directly at (323) 464-6424.
TITLE 17 SECTION 1219.1
This California Law Explains how a blood sample must be collected and for how long it must be preserved.
a) Blood samples shall be collected by venipuncture from living individuals as soon as feasible after an alleged offense and processed in compliance with Vehicle Code Section 23158.
(b) Alcohol or other volatile organic disinfectant shall not be used to clean the skin where a specimen is to be collected. Examples of suitable aqueous disinfectants include: aqueous povidine-iodine (Betadine) or aqueous benzalkonium chloride (zephiran chloride).
(c) Blood samples from living individuals shall be collected using sterile, dry hypodermic needles and syringes, or using clean, dry vacuum type containers with sterile needles. Reusable equipment, if used, shall not be cleaned with or kept in alcohol or other volatile organic solvents.
(d) The blood sample shall be deposited into a clean, dry container which is closed with an inert stopper.
(1) Alcohol or other volatile organic solvent shall not be used to clean the container.
(2) The blood shall be mixed with an anticoagulant and a preservative.
(e) When blood samples for forensic alcohol analysis are collected post- mortem, all practical precautions to ensure an uncontaminated sample shall be employed, such as:
(1) Samples shall be obtained prior to the start of any embalming procedure. Blood samples shall not be collected from the circulatory system effluent during arterial injection of embalming fluid.
(2) Care shall be taken to avoid contamination by alcohol from the gastrointestinal tract directly or by diffusion. The sample shall be taken from a major vein or the heart.
(3) Postmortem blood samples shall be mixed with an anticoagulant and preservative.
(f) In order to allow for analysis by the defendant, the remaining portion of the sample shall be retained for one year after the date of collection.
(1) In coroner/medical examiner cases, samples shall be retained for at least 90 days after date of collection.
(2) Whenever a sample is requested by the defendant for analysis and sufficient sample remains, the forensic laboratory, law enforcement agency, or coroner/medical examiner’s office in possession of the original sample shall continue such possession, but shall provide the defendant with a portion of the remaining sample in a clean container together with a copy or transcript of the identifying information carried on the original sample container.
So, if police destroyed a blood sample after 1 year passed, it is what CCR Title 17 requires and therefore is not a violation of the Trombetta/Youngblood line of cases.
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