San Diego DUI attorneys may
be able to defend a San Diego DUI blood test at DMV and/or
in court upon successfully showing the blood was drawn by
a person not licensed, certified or authorized under Vehicle
Code Section 23158 and Business & Professions Code §1246.
[The following illustration is often briefed by this California
DUI/DMV attorney when attacking unauthorized blood technician.]
BLOOD TESTS IN SAN DIEGO 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 DUI 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
which means the DMV should set aside the suspension action
and/or a court must so instruct the jury.
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.
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, a person who hs been issued a 'certified
phlebotomy technician' certificate pursuant to Section
1246 of the Business and Professions Code, 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.]
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]
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 show
a failure to belong to any of the Vehicle Code §23158(a)'s
limited group of persons?
It this statutorily-defined unlicensed person not "employed
by a clinical laboratory"?
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 proper 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 — then
the blood drawer was not authorized by law.
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.
