Challenging the results of blood tests in DUI arrests

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Most DUI investigations involve either blood being drawn or a breath test being taken. This article addresses some of the issues that arise regarding blood testing.  Most people (and unfortunately many “DUI” Lawyers) generally believe that if you take a blood test in a DUI investigation the results of an analysis of the blood are highly accurate and not subject to contest.  Nothing could be further from the truth.  This perception is not reality and simply stems from a lack of knowledge.

Condition of the Blood Sample Being Analyzed

The theory of blood testing is that the blood that is being analyzed is in the same condition as the blood that is in the person’s vein at the time it is drawn.  However this is rarely the case.  The law requires that the integrity of the blood sample be maintained from collection to analysis to reporting.  Science recognizes that the integrity of the blood specimen can be adversely affected from the point of collection through reporting of the result.

Collection of Blood

The manner in which the blood is collected, or drawn can affect the integrity of the blood specimen.  Studies have shown errors associated with the blood draw can lead to false positive analysis as high as 50%.  The drawing of blood is a sensitive medical procedure.  While there are exceptions, most persons typically performing the blood draws have limited background or training in the medical field.  Despite a lab coat or laminated ID card most of these individuals have completed a program consisting of no more than a 40-hour training course and 40 hours on the job training without any real understanding of the significant medical aspects of drawing blood.  As a result of this minimal training the integrity of the specimen is often compromised.

Storage of the Sample

The manner in which the blood is stored and maintained prior to being analyzed is a further source of error leading to false positive results.  Studies have shown error rates well over 100% can result from delays and improper storage of blood specimens.  All the conditions necessary for fermentation are present within the blood vial.  This includes amongst others the presence of yeast, bacteria and sugar that are normal substances in your body.  Even short delays or changes in temperature can exacerbate the conditions leading to fermentation.  Fermentation is the process by which alcohol is formed.   As a result of fermentation the amount of alcohol in the blood vial where the specimen is held will increase so that the total amount of alcohol in the blood specimen is a false high representation of what was contained in the person’s veins.

Testing of the Blood

Most forensic labs involved in analyzing blood specimens for alcohol on behalf of law enforcement use a procedure involving a machine known as a Gas Chromatograph.  Often times the manner in which this equipment is employed results in a presumptive determination of alcohol as opposed to a confirmatory method specific to alcohol.  This method can cause compounds which may respond to the method of detection in a manner similar to alcohol to be falsely measured as alcohol.  Additionally, this method cannot determine whether the alcohol being measured was originally present in the person’s vein or whether the alcohol being measured is that formed during the delay before analysis has occurred.

Manipulation of Analysis Data

Another serious problem that must be investigated has to do with the parameters being set during the stage of analysis when data is being collected.  Most forensic labs will set parameters on reporting data that conceal significant shortfalls in their chromatography method.  They accomplish this by setting the data reporting parameters to exclude accounting for volatile compounds that would disclose errors in their method, as well as indications of contamination and fermentation of the subject specimen.  Because most forensic labs are involved with a high level of volume in their specimen analysis they do not take the time to be precise and accurate in their methods but rather will engage in this practice to cover up their systemic problems.  This practice persists for the simple reason that very few attorney have the capacity and understanding to address this problem.

Lack of Error Reporting by Forensic Labs

Finally, most forensic labs are reporting the results of their analysis without having scientifically determined the actual rate of errors involved with their process.  Failure to ascertain the total uncertainty or range of error associated with the lab’s method is not a scientifically sound or valid procedure.  Most lab accreditation organizations are now requiring labs to ascertain and report the range of uncertainty associated with their method.  This is a complex process that requires the lab to continually ascertain, update and maintain that determination.  Law Enforcement Forensic Labs are often either not competent or not concerned with adhering to sound scientific procedures.  As a result forensic labs often report an arbitrary and scientifically invalid blood alcohol concentration level.

It’s Best to Have Professional Representation After a DUI

This article is not meant to be a technical discussion but rather to help the reader understand that when a person gets pulled over and arrested for Driving Under the Influence – DUI – and takes a blood test; the results from the analysis are not always valid.  If you or someone you know has been arrested for a DUI you can fight the allegations being made against you that often times might be based on false evidence.

If you or someone you know needs representation fighting a DUI Charge you should contact an experienced and knowledgeable DUI attorney.  Not all DUI attorneys are experienced and knowledgeable in the science associated with DUI representation.

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Denial of a Physician Assistant Certificate following a DUI Conviction

A conviction of a DUI can prevent the issuance of a Physician’s Assistant (PA) certificate.

The National Commission on Certification of Physician Assistants (NCCPA) requires a PA seeking certification to pass a national examination before being licensed by the individual state committees.   In California, the profession is licensed and governed by the Physician Assistant Committee (PAC).

PA students applying for the PANCE exam must disclose any convictions.  The NCCPA may deny an application because of a DUI charge based on their disciplinary policy and Code of Conduct.  Even if the NCCPA lets a person sit the exam, one may later be denied by the state licensing committee based on the same conviction.  On the other hand, if a PA student is not allowed to sit the PANCE exam, they can never be certified by PAC.

Any DUI conviction must be disclosed on the applications, and all related arrest and court documents must be submitted to both PAC and the NCCPA for review.  Prospective PAs must also submit a personal statement explaining the DUI charge in detail.

The California Business and Professions code authorizes the committee to deny a state license application for the conviction of any crime (Bus. & Prof. Code § 480.) Subsequently, the California Code of Regulations defines driving under the influence as a criminal conviction substantially related to the work of a Physician Assistant (16 CCR. § 1399.525(i).)

In recent communications with the NCCPA (678-417-8100) and PAC (916-561-8780), the committees confirmed that they use a subjective standard when looking at a candidate’s DUI history.  The severity of the charge, the time it occurred, and the steps taken toward rehabilitation are all considered in the review.  In exercising its discretion regarding whether to deny a license PAC is guided by 16 CCR § 1399.526, which lists criteria for evaluating an individual’s rehabilitation.  Candidates may be approved, denied or offered a probationary license based on the committees’ decisions.

If you or someone you know has a professional license or is an applicant for a professional license in the State of California and has been arrested for a DUI charge contact The Law Office of Johnson & Johnson at 925.952.8900 for a consultation.

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Revocation or Denial of a Merchant Mariner Credential Because of a DUI

A Merchant Marine Credential (MMC) is a credential issued by the U.S. Coast Guard combining the elements of the merchant mariner’s document, merchant mariner’s license, and certificate of registry, which are no longer issued as separate documents. (46 CFR § 10.201.)

When determining whether to issue or renew a Merchant Marine Credential the Coast Guard may conduct a criminal record review and in certain circumstances consider whether the person’s driver’s license is suspended due to a DUI conviction. (46 CFR § 10.211.) Federal statute provides that a DUI conviction can serve as the basis for the denial, suspension, or revocation of an MMC for three years following the conviction. (46 U.S.C. § 7703, subd. (3).)

Federal regulations state that no person who has ever been convicted of a DUI because of an addiction to, or abuse of, alcohol is eligible for an MMC unless the person furnishes proof of completion of an accredited alcohol rehabilitation program or active membership in a rehabilitation or counseling group. (46 CFR § 10.211, subds. (f) & (l).)

Additionally, the federal regulations set out specific periods of time during which the Coast Guard will consider alcohol related driving convictions as a bar to the MMC. (46 CFR § 10.213, subd. (c).)

Similar to the California punishment scheme for DUI’s, the federal regulations specify different time periods depending on the number of DUI convictions a person has. For example, after a person’s first DUI the regulations specify an assessment period of one year from the date of conviction. This means that a person will not be considered for an MMC until one year after his first DUI conviction.

Once three years have passed since the date of the conviction, the regulations state that an assessment period is not necessary unless suspension or revocation of the person’s driver’s license is still in effect. (46 CFR § 10.213, subd. (c).) However, even though the assessment period has passed the Coast Guard still considers the conviction in assessing whether to grant or renew the MMC. An individual at the Coast Guard National Maritime Center reached by telephone confirmed that while DUI convictions occurring prior to the applicable assessment period will be considered their negative effect on an applicant decreases with the passage of time.

Because the assessment period continues while a license suspension is in effect, the policies and actions of the California Department of Motor Vehicles can have a direct and adverse effect on a person’s Merchant Marine Credential issued by the United States Coast Guard. This is not good news for people convicted of DUI or BUI (boating under the influence) offenses.

The same basic regulatory scheme applies to drug related driving offenses except that special provisions apply to any person who has ever been the user of, or addicted to, the use of, a dangerous drug. (46 CFR § 10.213, subd. (f).)

Moreover, the California Courts have held that the State can revoke a state pilot license issued by the Board of Pilot Commissioners notwithstanding the fact that the pilot was operating under a federally-issued license at the time of the disqualifying incident. (Hochstetler v. Board of Pilot Commissioners (1992) 6 Cal.App.4th 1659, 1670.)

In addition, state pilot licensing laws require possession of a federal license. (Cal. Harb. & Nav. Code § 1177.) Therefore, a DUI conviction may result in the revocation of a state piloting license if the Coast Guard acts pursuant to the above-cited federal regulations.

If you or someone you know has been arrested for a DUI charge contact The Law Office of Johnson & Johnson at 925.952.8900 for a consultation.

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Driver’s License Suspension and BUI

The Department of Motor Vehicles would like greater power to suspend a person’s license upon conviction for boating under the influence of drugs or alcohol.

Like driving under the influence (DUI), boating under the influence (BUI) of drugs or alcohol is a crime for which the law provides various penalties. These penalties include fines, imprisonment, completion of an alcohol or drug treatment program, and completion of a boating safety course.

The laws against BUI are similar to those criminalizing driving under the influence and a prior BUI conviction can be used to enhance a DUI charge. However, much as the Department of Motor Vehicles might wish otherwise, the DMV cannot suspend a person’s driver’s license based on a BUI conviction.

The DMV tried to argue before a California Appellate Court in Cinquegrani v. Department of Motor Vehicles (2008) 163 Cal.App.4th 741, 748 that when a person violates the BUI law he effectively violates the DUI law for the purposes of license suspension.

The Court disagreed with the DMV’s attempt to rewrite the law and held that although a prior BUI conviction may used to enhance the punishment for a subsequent DUI conviction, suspension of driving privileges is not a “permissible punishment” for a BUI conviction.

At the time the case went to court, the DMV had drafted proposed legislation for the Legislature to adopt so as to give the Department the power to revoke a person’s license upon conviction of a BUI. Apparently the Department found an ally in State Senator John Benoit who sponsored Senate Bill 154 in 2009, after Cinquegrani was decided. SB 154 would grant the DMV the power to suspend a persons license upon conviction of a BUI.

The Bill passed the Senate but has yet to make it through the Assembly. An analysis by the Assembly Committee on Appropriations noted of the Bill that there are many differences between boating and driving both in peoples actions and the legal scheme, which indicates that driving privileges should not be suspended upon a BUI conviction.

As it stands now, the a prior BUI conviction can be used to enhance the penalties for a subsequent DUI conviction (which includes license suspension) but the DMV cannot suspend a persons license upon a BUI conviction itself.

If you or someone you know has been arrested for a DUI charge contact The Law Office of Johnson & Johnson at 925.952.8900 for a consultation.

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DUI Bar to Real Estate License

A conviction of a DUI can prevent the issuance or cause the suspension or revocation of a real estate license if combined with another conviction involving drugs or alcohol.

The California Real Estate Commissioner has developed criteria for the denial, suspension or revocation of a real estate license in addition to the laws passed by the California Legislature.

The California Business and Professions Code provides that an administrative agency may suspend or revoke a professional license if a person is convicted of a crime substantially related to the qualification, functions, or duties of the business or profession. (Bus. & Prof. Code § 490.) The Code then directs each licensing board to develop criteria to aid it when considering whether a crime is substantially related to the qualifications of a profession so as to deny, suspend, or revoke a license because of the conviction. (Bus. & Prof. Code § 481.)

For Real Estate Salespersons and Brokers, the Department of Real Estate is guided by 10 CCR § 2910, which provides, among other things, that “two or more convictions involving the consumption or use of alcohol or drugs when at least one of the convictions involve driving and the use or consumption of alcohol or drugs” shall be substantially related to the real estate profession.

According to a Commissioner at the Department of Real Estate, each application is reviewed and considered individually. So while an applicant or licensed individual may have a potentially disqualifying conviction, the person may be able to receive a restricted license. In exercising its discretion regarding whether to deny, suspend, or revoke a license the Department is guided by 10 CCR § 2911, which lists criteria for evaluating an individual’s rehabilitation. Section 2911 provides, among other things, that abstinence from drugs or alcohol for at least two years will be considered if that was the basis for the denial.

The Department must, however, consider two or more convictions involving the consumption of alcohol or drugs substantially related to the real estate profession if at least one of the convictions involves driving and the consumption of alcohol or drugs. While the Department can inquire into the circumstances of the conviction so as to fix the degree of discipline, it appears that the Real Estate Commissioner has unequivocally determined that a DUI coupled with another conviction involving the use of drugs or alcohol is substantially related to the qualifications, functions, or duties of a real estate license so as to warrant the blanket category.

If you or someone you know has been arrested for a DUI charge contact The Law Office of Johnson & Johnson at 925.952.8900 for a consultation.

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Will a Doctor lose his/her License due to DUI?

The Internet is becoming fraught with reports of physicians losing their license following a DUI arrest.  Most reports relate to doctors who have had multiple arrests or are have been arrested for a DUI incident involving injuries.   However, this is no reason to be overly optimistic that the Medical Board will not take action against a physician upon a first arrest.   The tangential effects outside the courtroom for DUI arrests are becoming more stringent daily.  It is likely that most of the cases where physicians are losing their licenses for multiple offenses is a product of the more active and strict enforcement by administrative agencies and licensing boards as opposed to the mere fact that they have multiple offenses.  Nonetheless, at this time multiple offenses certainly remain important criteria for Medical Licensing Boards and Administrative agencies.

In California the Medical Board (www.mbc.ca.gov) states that it looks not only at the DUI conviction itself but beyond the conviction into the circumstances of the arrest and the events in the personal life of the physician leading up to the arrest.   Moreover, a physician is under a duty to disclose any pending charge for a felony and any conviction for a misdemeanor.  It should be noted there is a discrepancy in what the legal requirements are for a licensed physician versus an applicant regarding a misdemeanor charge.  Under California Business and Professions Code section 802.1 a physician is not required to report a misdemeanor unless it results in a conviction. Whereas an applicant is required to report any pending charge.

If the Board files a petition against a physician and the physician elects to challenge the matter a hearing may be held before an administrative law judge.  Based on the decision of the administrative law judge and the investigation of the Board recommendations will be made for discipline.  The Board may elect to take no action, suspend the license, place the physician on probation or revoke the physician’s license.  The Board may also place conditions on any action in order to address perceived concerns of public safety.

The primary disciplinary provisions for a Physician in California are set forth in the Business and Professions code.  Important provisions are as follows:

If you or someone you know has a professional license or is an applicant for a professional license in the State of California and has been arrested for a DUI charge contact The Law Office of Johnson & Johnson at 925.952.8900 for a consultation.

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Are Commercial Drivers’ DUI Penalties Appropriate?

More and more it is becoming quite clear that for many people the penalties for Driving Under the Influence outside the courtroom are more severe than the court imposed penalties.  For example a Commercial Driver will become disqualified for a commercial license for a period of one year if their license is suspended by the Department of Motor Vehicles at an administrative hearing following a DUI arrest.  Even if the Commercial Driver prevails at the administrative hearing if the driver is later convicted in court of the DUI this will result in the one year disqualification.  Also, if a Commercial Driver refuses to take a blood alcohol or breath alcohol test following a DUI arrest the driver will be disqualified for a year.  An even more dramatic penalty is imposed for a repeat offense of any of these circumstances, a lifetime disqualification will be imposed.  These severe penalties can occur even if the commercial driver’s offense occurs in his personal vehicle not related in any way to commercial driving.  Is this fair?  Are these penalties too harsh?   While other professions may be similarly affected (a Blog for another day) when an average person is convicted of a DUI it generally does not mean they are barred from pursuing their livelihood.   Is disqualification of a Commercial Driver’s License (the livelihood for the individual) based on personal driving unrelated to commercial interests, a penalty that is rationally related to the perceived harm.

A list of Commercial DUI penalties are set forth at the Federal Motor Carrier Safety Administration website fmcsa.dot.gov.  For more information about the potential effects of DUI penalties to your profession call 925.952.8900 or see our website at http://dui.jjlaw2.com

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