California DUI attorneys look
to San Diego California DUI - DMV attorney Rick Mueller's
seminar materials when attacking a California DUI blood
test upon successfully showing:
10(a). If the blood drawer
was employed by a company but is not a "registered nurse,"
"licensed vocational nurse," "physician," "paramedic,"
or "clinical laboratory technologist," or "clinical laboratory
bioanalyst."
10(b). If the blood was
drawn by a person not licensed or authorized as a professional
under the Vehicle Code — who was not employed by a clinical
laboratory [Business & Professions Code §1246(b)(1)].
10(c). If blood drawer not
properly supervised.
[The following illustration is
often briefed by this California DUI/DMV attorney when attacking
unauthorized blood technician.]
BLOOD TESTS IN SAN DIEGO CALIFORNIA
CANNOT BE PRESUMED RELIABLE UNLESS THEY ARE IN STRICT COMPLIANCE
WITH VEHICLE CODE §23158(a) AND TITLE 17 §1219.1(a) OF THE
CALIFORNIA CODE OF REGULATIONS
If your San Diego California
DUI/DMV attorney shows that a procedure or standard has
not been complied with, then there is no longer any presumption
of reliability for the alcohol tests.
If your blood specimen is
not taken by a person authorized by law to do so, it does
not enjoy the presumption of reliability. DMV should set
aside the suspension action.
A. Persons Drawing Blood Must
Be Authorized Professionals Title 17 §1219.1 [Blood Collection
and Retention] regulates:
"(a) Blood samples shall
be collected by venipuncture from living individuals as
soon as feasible after an alleged offense and only by
persons authorized by Section 13354 (now 23158) of the
Vehicle Code."
Vehicle Code §23158(a) (formerly
§13354) lists several professions whose members are authorized
to withdraw blood.
A phlebotomist - employed by
a company which is not a licensed clinical laboratory -
is not included on this list.
The authorized list is limited
to only competent professions:
"Only a licensed physician
and surgeon, registered nurse, licensed vocational nurse,
duly licensed clinical laboratory technologist or clinical
laboratory bioanalyst, unlicensed personnel regulated
pursuant to Sections 1242, 1242.5 and 1246 (requiring
the person to be 'employed by a clinical laboratory')
of the Business and Professions Code, or certified paramedic
acting at the request of a peace officer may withdraw
blood for the purpose of determining the alcoholic content
therein.
This limitation does not apply
to the taking of breath specimens."
Ergo, under the doctrine of
expressio unius exclusio alterius esti, no one else is empowered
to poke someone in order to draw blood for forensic alcohol
analysis in Vehicle Code §23152 cases.
B. Test is arguably Inadmissible
if Drawer is Unauthorized or Incompetent.
Unless the person administering,
processing, and collecting scientific test evidence is competent
and qualified, that evidence is inadmissible. [People v.
Adams (1976) 59 Cal.App.3d 559, 561, People v. Kelly (1976)
16 Cal.3d 24, 30]
The "only" wording of the
statute makes clear the limitation is "mandatory and that
compliance constitutes a duty imposed upon the agencies
and individual officers and civilian employees who administer,
analyze, and report the tests." [People v. Williams (May
17, 2001) No. C031921, quoting People v. Adams, supra, and
Davenport v. Department of Motor Vehicles, supra.]
This sort of illegal blood collection
is clearly forbidden.
"It has been established by
[a number of] cases that the right to penetrate the human
tissue for injection of drugs, medicines, or to draw blood,
does not come from the experience or training of the injector.
The right to inject is based on the state's interest in
protecting the public health. Competency is to be determined
by the state, not by the injector's associates, and is evidenced
by a license issued by the state." [People v. Rehman (1967)
253 Cal.App.2d 119, 161 [Citations omitted]. Since poking
someone with a needle is an assault, a battery, and even
an assault with a deadly weapon [People v. Lema (1987) 188
Cal.App.3d 1541, 1545, In re Jose R. (1982) 137 Cal.Ap.3d
269, 275-276], then only a specific category of persons
may poke with a needle in response to orders by the police;
otherwise, both the officer and the poker would be criminally
liable under state law [Penal Code §§240/242/245] and federal
law [18 U.S.C. §§241/242].
The blood test evidence, in
addition to being collected in criminal violation of Licensee's
rights, and the rights of all the members of the polity,
was in violation of statute and case law, thereby not reliable
and therefore evidentiarily inadmissible.
Results of a non-licensed
test are "lacking in probativeness." [Coombs v. Pierce,
supra @579.] "Probativeness" = relevance; lacking therein
= irrelevant = inadmissible. [Evid. C. §§320/350]
In suppressing an unlawfully
obtained blood sample taken by a person not authorized by
statute to do so, a Texas court held the sample was inadmissible.
[State v. Laird (2000) 38 SW3d 707, 2000 WL 1825504]
Does the testimony show the
blood drawer is an unlicensed person defined by Vehicle
Code §23158(a) — merely a "phlebotomist" — critically not
employed by a clinical laboratory?
C. Business & Professions
Code §1246 mandates any "unlicensed person" must be "employed
by a clinical laboratory."
Business & Professions (B & P)
Code §1246 subsections (a) and (b) require the employer
to be a "clinical laboratory."
This prerequisite must be
met before reviewing Department of Health Services' regulations
concerning the unlicensed person's credentials as a certified
phlebotomist.
Since either B & P §1246 subsection
(a) or (b) (1) specifies an "unlicensed person employed
by a clinical laboratory," there is no exception to the
requirement that a person — who is not licensed in a profession
named in Vehicle Code §23158(a) — must be employed by a
clinical laboratory in order to lawfully withdraw blood.
Business & Professions Code
§1242.5 permits the department, by regulation, to authorize
laboratory personnel certified pursuant to Section 1246
"for the purposes of withdrawing blood or for clinical laboratory
test purposes, as defined by regulations established by
the department."
Each established regulation begins
with the word "laboratory."
Title 17, Public Health, Division
1. State Department of Health Services, Chapter 2. Laboratories,
Group 2. Clinical Laboratory Regulations, Article 1.5 Licensure
of Clinical Laboratory Personnel §1034 [Unlicensed Personnel,
Venipuncture and Skin Puncture and Arterial Puncture] regulates,
as follows:
"Pursuant to Section 1242.5
and Section 1246(b) of the Business and Professions Code,
unlicensed persons may perform venipuncture, skin puncture
or arterial puncture upon meeting the following training
requirements:
(a) An unlicensed person
employed by a licensed clinical laboratory for the purpose
of withdrawing blood for test purposes upon specific
authorization from a licensed physician or surgeon,
provided he has been trained in the proper procedure
to be employed in the performance of venipuncture and
skin puncture. Ten clock hours of such training shall
be the minimum acceptable, shall be carried out under
the general supervision of a licensed physician or surgeon
or clinical laboratory bioanalyst and the personal and
direct supervision of one of these...
Upon satisfaction completion
of the above training in venipuncture and skin puncture
techniques, the physician and surgeon or clinical laboratory
bioanalyst in charge of such training shall prepare
and issue to the unlicensed person a signed certificate
that the named individual satisfactorily completed training
which began and terminated on specified dates.
(b) An unlicensed person
employed as a technician in respiratory services or
cardiopulmonary laboratories in licensed clinics or
hospitals may perform venipuncture...
(c) An unlicensed person
employed as a technician in respiratory services or
cardiopulmonary laboratories in licensed clinics or
hospitals may perform arterial puncture...
(d) Copies of certificates
issued under this section shall be maintained in the
respective training facilities for a period of at least
two years.
Having the name "Nurses" in
a contractor's company name does not substitute for Vehicle
Code §23158(a)'s or Business & Professions Code §1246's
statutory requirement.
Does this blood drawer's testimony
show a failure to belong to any of the Vehicle Code §23158(a)'s
limited group of persons?
Does this statutorily-defined
unlicensed person's testimony show a failure to be "employed
by a clinical laboratory"? No.
Even if she/he could be found
to be employed by the law enforcement laboratory; that is
a forensic laboratory, not a clinical laboratory.
If the drawer does not fall into
any of the statutorily defined professions or exception,
the drawer is not authorized to lawfully draw blood.
D. A Phlebotomist's Credentials
and Supervised Draws are Issues Only If the Phlebotomist
Is Employed by A Clinical Laboratory
If the drawer's company is
not a clinical laboratory, the drawer's credentials in phlebotomy
are irrelevant and do not supplant this statutory prerequisite.
Compliance with parts of subsequent
regulatory requirements - i.e. meeting a phlebotomist's
qualifications - is insufficient. Similarly, proper "supervision"
is a separate issue, only after the person performing venipuncture
is shown to be "employed by a licensed clinical laboratory."
E.g., B & P §1246(a) requires:
"(1) He or she works under
the supervision of a person licensed under this chapter
or of a licensed physician or surgeon or of a licensed
registered nurse. A person licensed under this chapter,
a licensed physician or surgeon, or a registered nurse
shall be physically available to be summoned to the scene
of the venipuncture within five minutes during the performance
of those procedures."
Accordingly, questions of
supervision, education, training and experience arise only
after determination of the prerequisite question of authorized
clinical laboratory employment.
DOES THE EVIDENCE SUPPORT THE NECESSARY FINDINGS
A. Can an Unauthorized Source
of Information Support a Test Result's Required "Trustworthiness"?
[Evid Code §1280(c)]
How can a test result meet
the requirement of Evidence Code §1280(c) that the sources
of information were such to indicate the blood test record's
trustworthiness?
The Official Duty Presumption
[Evid. C. §664] does not apply to the "trustworthiness"
element of the Official Records Exception to the Hearsay
Rule [Evid. C. §1280(c)]. [Shea v. DMV (1998) 62 Cal.App.4th
1057, 1060 - a test performed by an unauthorized person
- an unsupervised trainee - is inadmissible; Manning v.
DMV (1998) 61 Cal.App.4th 273]
The legislature was aware
of Evid. C. §664 when it put the independent requirement
of "trustworthiness" into Evid. C. §1280. Thus, before the
Department can rely on any §664 official duty presumption,
the evidence must first meet all three foundational requirements
of Evid. C. §1280, the Official Records statute.
Since a source of this blood
draw is unauthorized by law to draw blood, how can this
evidence be trustworthy?
B. Is An Unauthorized Blood
Draw The Sort of Evidence on Which Responsible Persons are
Accustomed to Rely in the Conduct of Serious Affairs?
When considering forensic
evidence, Manning v. DMV (1998) 61 Cal.App.4th 273, quoting
Government Code §11513(c), indicates DMV should ask — Is
it "the sort of evidence on which responsible persons are
accustomed to rely in the conduct of serious affairs?"
If the blood test — drawn
by an unlicensed person not employed by a clinical laboratory
— the sort of evidence on which the Department is accustomed
to rely in the conduct of serious affairs?
Breaking the law to enforce it
grates shudderingly on the sensibilities of responsible-thinking
people.
C. Does a Blood Test Record
Cannot Support a .08% BAC Finding?
"Hearsay evidence may be used
for the purpose of supplementing or explaining other evidence
but over timely objection shall not be sufficient in itself
to support a finding unless it would be admissible over
objection in civil actions." [Gov Code §11513(d); Lake v.
Reed (1997) 16 Cal.4th 448, page 458]
In other words, hearsay is
always admissible at a DMV hearing. But hearsay may not
be used as the sole basis for a DMV decision unless some
statutory hearsay exception applies which would make it
admissible in a civil proceeding.
The statutory hearsay exception
[Evid. C. §1280(c)] does not apply when the unauthorized
source is not trustworthy. Therefore, an inadmissible alcohol
report may not be solely relied on to determine DMV's third,
BAC issue.
The blood test record is not
sufficient in itself to support a finding. Only an admissible
record of a blood test can show evidence of blood alcohol
to support a BAC finding.
CONCLUSION
If the blood drawer or technician
was a person who is not included in Vehicle Code §23158(a)
except as an unlicensed person under the limitations of
Business & Professions Code §1246, and if the unlicensed
person was employed by a company — not a clinical laboratory
— the drawer was not authorized by law to draw blood.
DISCLAIMER
Duplication
or use of any version of the above brief or illustration
is strictly prohibited unless Rick Mueller gives express
permission.
California
DUI attorney Rick Mueller makes no guarantee or representation
that driver will prevail when making the above, illustrative
argument or any version thereof. Results vary depending
on the attorney's effective examination of blood drawer,
jurisdiction, venue, trier of fact, other facts, and the
specific witness. Other issues often must be raised. The
argument cannot be made without subpoenaing the necessary
witness. Non-attorneys must not try this argument; only
licensed, experienced DUI attorneys may. Attorney further
disclaims responsibility for any legislative or judicial
changes. Attorney Rick Mueller has simply enjoyed success
using similar arguments in his legal writs.
