Unauthorized Test

Unauthorized San Diego DUI Blood Drawer / Technician

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.

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