What is Title 17 in California?
Title 17 created the rules on how law-enforcement, forensic alcohol laboratories, and other government entities must perform DUI chemical tests like DUI breath tests, urine tests, and blood tests, to prevent false positive or inaccurate results. Blood tests, urine tests, and breath tests can be powerful evidence that can sway a jury to find a defendant guilty of a DUI. People could get wrongfully convicted of these criminal charges because of flawed testing procedures.
Our state legislature enacted these laws to protect innocent people from wrongful convictions. Because these tests carry so much weight with juries, there must be confidence in the accuracy of the results. If the government or laboratory did not perform the tests in accordance with the Title 17 requirements, the prosecutor should not rely on the test results or introduce them into evidence in a case.
Why Does Title 17 Matter?
If you can successfully challenge your DUI based on Title 17 of the California Code of Regulations violations, you could enjoy one of these consequences:
- Getting the prosecutor or judge to dismiss your DUI charges
- Negotiating a successful plea bargain with the prosecutor to reduce your charge from a DUI to a lesser charge
- Taking your case to trial and winning a not guilty verdict.
The prosecutor is unlikely to examine in great detail whether the government agency checked every box on the Title 17 regulations. Usually, it is up to the defense attorney to explore whether the testing procedures complied with the requirements of Title 17. Very few criminal defendants know how to investigate the possibility of a Title 17 DUI defense, which means that they could get convicted on inaccurate and flawed test results.
What Does Title 17 Say About Breathalyzer Tests?
17 CCR §1221.2 lays out the rules the government must follow for breathalyzer tests used in DUI cases. The details of the requirements of Title 17 for breathalyzer tests could fill up an entire article on its own, so we will summarize. Here are some of the primary regulations:
- The officer must collect and analyze two separate breath samples from each person. The breath alcohol concentrations cannot differ from each other by more than 0.02 g per 210 liters of breath.
- The breathalyzer device must be checked for accuracy by using control samples that are either water or dry gases of alcohol. Each machine must get tested periodically against control samples. A forensic alcohol laboratory must provide the reference samples used as controls.
- A forensic alcohol analyst must use the results of the analysis to determine if the instrument currently registers accurate alcohol concentration results. An operator can check the machine against control samples, or the analysis can take place automatically.
- The accuracy checks of breathalyzer equipment must happen either every 10 days or less or after testing 150 subjects, whichever comes first.
- Officers who perform breath alcohol testing on people for the purpose of DUI evaluation must have at least four hours of training on a variety of breathalyzer use and related subjects.
- Every officer training to use a breath instrument must pass a written exam on the subject with a score of at least 80%. Also, the instructor must observe the trainee operate the instrument and perform a successful test on the instrument. The officer must have training in how to use the specific breath alcohol testing device used by the law enforcement agency.
- The forensic alcohol laboratory must keep records for every breathalyzer device, including the frequency that each instrument got tested for accuracy and the identity of every person who performed manual accuracy evaluations. The records must demonstrate compliance with the Title 17 regulations.
If the law enforcement officer or agency violated any of these regulations, it could be grounds for challenging DUI charges that relied on the breathalyzer test results.
What Are the Title 17 Rules About Urine Tests?
Urine tests are not used as often as breathalyzer or blood sample tests for forensic alcohol analysis, but Title 17 does address the procedures one must follow in collecting and storing a sample for urine analysis. In a living individual, the person suspected of driving under the influence must first void the bladder and then wait at least 20 minutes before giving the urine sample that will get tested. The forensic laboratory must store the urine sample in a clean, dry container with a preservative.
The sample must remain in storage for one year from the date of collection to give the defendant the opportunity to get the sample analyzed. If the defendant requests a sample for analysis and the forensic laboratory, law enforcement agency, or coroner/medical examiner’s office has enough of the sample remaining; they will provide a sample for analysis to the defendant in a clean container with identifying information, while continuing to maintain possession of the original sample container.
What Are the Title 17 Blood Test Regulations?
If a blood sample gets collected on a living individual, the collection must happen as soon as feasible after the alleged offense because alcohol levels can decrease relatively quickly with the passage of time. The blood sample must be drawn by venipuncture, which means using a blood-drawing needle to remove a blood sample from a vein.
The individual who draws the blood sample should not use alcohol or any other volatile organic disinfectant to clean the skin before drawing the specimen. In other words, the person drawing the blood should use a disinfectant like Betadine or zephiran chloride rather than an alcohol wipe or alcohol on a cotton ball. Using alcohol to disinfect the skin could create a false-positive result. None of the equipment, including the hypodermic needles, syringes, vacuum-type containers, or any other equipment, should be cleaned with or kept in alcohol.
On occasion, a blood sample for forensic alcohol analysis gets collected post-mortem when there is a suspicion of alcohol impairment. The professional collecting the blood sample on the deceased individuals should use all practical precautions to avoid contaminating the sample. The sample should be collected before starting any embalming procedure. The blood must be drawn from a major vein or from the heart to avoid contamination by alcohol from the gastrointestinal tract or by diffusion.
A post-mortem blood sample must be combined with an anticoagulant and preservative. The coroner or medical examiner must keep the blood sample for at least 90 days after the date of collection.
Do Forensic Alcohol Laboratories Have Rules Under Title 17?
Absolutely. Medical laboratories get in trouble frequently for incompetence causing false negatives or false positives on many types of medical tests. The California legislature is aware of this, so they enacted strict regulations on forensic alcohol laboratories to protect the rights of individuals from unfair convictions based on flawed test results.
Only qualified personnel at a forensic alcohol laboratory are allowed to perform forensic alcohol analysis. In addition to maintaining a quality control program in forensic alcohol analysis procedures under Title 17 and submitting evidence that they meet the proficiency testing requirements under the health code, the lab must use only trained forensic alcohol analysis to perform the testing.
Under Title 17, the qualifications for a trained forensic alcohol analyst include all of the following:
- Having a bachelor’s degree or higher in the field of life science or physical science.
- Having two years of analytical experience performing alcohol analysis and experience in interpreting the demeanor and behavior of individuals after consuming specific known amounts of alcohol or satisfactorily completing a training course on forensic alcohol analysis and many related topics.
- Have successfully completed a hands-on competency test with at least four samples that meet different, predetermined test results, with the test-taker being unaware of those values.
The laboratory must provide written information about its testing programs for its personnel to the government agency that uses its testing services for forensic alcohol analysis.
What Should I Do if I Suspect the Officer or Laboratory Broke a Title 17 Rule in my DUI Arrest and Investigation?
You should talk with your criminal defense attorney about any possible Title 17 violations by the officer or forensic laboratory. If your sample got corrupted, it should not be used against you. If the officer or forensic alcohol laboratory personnel did not meet the qualifications for collecting or analyzing breath, blood, or urine samples for purposes of a DUI, you could have a strong defense in your case.
Your lawyer can subpoena the records that document the relevant chain of events. Also, your attorney can check the maintenance records of the specific device used, the training of the law officer or lab worker, and the forensic alcohol laboratory’s compliance with Title 17 regulations.
After compiling this information, your DUI lawyer can create a strategy for advocating on your behalf to the prosecutor or judge. Depending on the stage of your case at that time, your attorney can select from the available procedural options.
Should I Try to Challenge a Title 17 DUI Violation on My Own?
California law does not force you to hire a lawyer to aggressively attack your DUI charges and build a strong defense on your behalf, but with so much at stake for your future, working with a lawyer can be a smart decision. Title 17 challenges are sophisticated criminal defense procedures, best left to legal professionals.