Tuesday, August 24, 2010

Legal Considerations to legitimately attack unreliable, untrustworthy, improper & inadmissible California DUI chemical test results - defense attorney

Legal Considerations to legitimately attack unreliable, untrustworthy, improper & inadmissible California DUI chemical test results, as used by California drunk driving criminal defense attorneys:

Health & Safety C. §100700 (formerly §436.50) authorizes the Department of Health Services to enact regulations relating to breath, blood and urine alcohol testing. These regulations appear in Title 17 of the California Code of Regulations (Cal. C. of Regs.).

The failure to follow the requirements of Cal. C. of Regs., Title 17, does not automatically result in the inadmissibility of the chemical test result. Rather, such failure usually goes to the weight to be given the evidence by the finder of fact. People v. Williams (2002) 28 C4th 408; People v. Adams (1976) 59 CA3d 559, 131 CR 190; People v. French (1978) 77 CA3d 511, 143 CR 782; People v. Rawlings (1974) 42 CA3d 952, 117 CR 651; CALJIC's 12.61 & 12.61.1

Adams does exclude the evidence if there was not only a failure to follow Title 17, but also no other scientific foundation for it. Coombs v. Pierce (1991) 1 CA4th 568, 2 CR2d 249; and Coniglio v. DMV (1995) 39 CA4th 666, 46 CR2d 123.

If you have any evidence of any sort that proper procedures were not followed, you are entitled to the second paragraph of either CALJIC 12.61 or 12.61.1. They both read:

The failure, if any, to follow the regulations adopted by the California State Department of Health for procedures to be used in administering tests to determine the concentration of alcohol in a person's blood may be considered by you in determining the accuracy of the test or test results made in this case.


Administrative regulations are the proper subject of jury instructions when they cover the relevant law (Hyde v. Russell & Russell (1959) 176 CA2d 578, 1 CR 631; Miles v. Alexis (1981) 118 CA3d 555, 173 CR 473).

Form 9-4 is an instruction that allows you to state the appropriate language from Cal. C. of Regs., Title 17, that is alleged to have been violated. That is followed by the second paragraph from CALJIC 12.61.