Available at (916) 233-7346
Title 17 deals with the prosecution's obligation to lay a foundation (in other words to “explain”) why a urine, breath or blood test should be considered as reliable evidence against a DUI defendant. This step must be taken before such evidence can be formally admitted into the evidentiary record of the court. The most common way that the District Attorney can satisfy this requirement is to present the oral testimony of the officer who carried out the test. To be meet the requirements, the officer's testimony must explain the procedure he or she used during the test. Medical staff who performed blood tests on the defendant or specialists in the police department's crime lab may also testify to help establish the foundation for the admission of the evidence.
The formal rules are found in California Code of Regulations Title 17 which details the factors evaluated to determine if an acceptable foundation exists. There are many specific requirements laid out in Title 17, and often it can prove difficult for the prosecution to establish all of them perfectly. However, according to relevant case law, such as People v. Adams, 59 Cal. App. 3D 559, the prosecution's failure to prove strict compliance with the requirements of Title 17 will not suffice to exclude any such evidence. Rather, any failures in this matter will affect the weight that should be given to this evidence by the jury. Usually, defense counsel will request a specific jury instruction to instruct the jury that they may appropriately weigh the prosecution's evidence on this matter in light of the failure to meet Title 17.
In short, some of the guidelines imposed by Title 17 are the following:
- Requiring that air examined by the PAS device be from the alveolus of the lung
- The officer must observe the suspect driver for fifteen minutes prior to administering the breath test
- The test device must be re-calibrated after one hundred and fifty uses or every ten days.
- Blood tests must be done by a qualified person (technician)
- Non-alcoholic cleaner must be used to prep the area of the needle draw
- The blood sample container must include a sufficient amount of preservative to prevent fermenting or clogging
- The blood sample must be properly mixed after being drawn
- Blood samples must be properly stored
- For urine tests, the suspect needs to completely urinate once before providing the urine that will serve as the sample
- The sample container must have a preservative and otherwise be clean and dry
- The urine sample requires preservation so that it may be subject to a later re-test.
One of, if not the most, powerful defenses available in DUI cases is the ability to get the chemical test excluded from evidence. There is a general misconception that the results of the chemical test will be the key, when in reality it is whether the proper procedure was followed by law enforcement in obtaining the chemical test. If the proper procedure was not followed, the chemical test can be attacked as inadmissible no matter what the result was. The result is irrelevant. For more information on the effective strategies in combating the chemical test, contact Sacramento DUI Attorney Michael Rehm at (916) 233-7346.