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
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
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
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
"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
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
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
"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
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
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
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
(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
If the drawer does not fall into any of the statutorily
defined professions or exception, the drawer is not authorized to lawfully
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
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
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%
"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.
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.
Duplication or use of any version of the above brief
or illustration is strictly prohibited unless Rick Mueller gives express
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.