Fermentation Issues in DUI Blood Testing

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Due to California's "implied consent" law, if you are pulled over and arrested for a DUI providing a breath or blood sample is mandatory. DUI blood testing is generally considered more reliable then DUI breath testing, yet this method is subject to error as well.

When it comes to blood testing, blood alcohol content (BAC) refers to the number of grams of alcohol present per 100 milliliters of blood in a person's system. If your BAC level was discovered to be 0.10%, this would mean that you had 1/10 of a gram of alcohol per every 100 milliliters of your blood.

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Effect of Fermentation on the Sample

Fermentation of a blood sample can cause an inaccurately high test result. The way in which blood is collected or drawn can affect the integrity of a sample. The way in which blood is stored and maintained before being analyzed can further affect its integrity. Because the amount of blood tested is different than the amount of blood drawn, the smallest of errors can cause a giant error in the overall results. While an entire vile of blood from a person's arm is usually drawn, normally less than a tenth of an ounce is tested.

How does fermentation affect a blood sample?

Fermentation (the process by which alcohol is formed) can easily occur within a blood vial, as yeast, bacteria and sugar are all normal substances within one's body. Delays in analyzing or changes in temperature can speed up the process leading up to fermentation.

Candida albicans is the name of common yeast organisms. Candida albicans is everywhere- on your skin, your steering wheel, your coffee mug. Everywhere! These organisms eat organic material, such as blood in a test tube. Like other organisms, these excrete. Yet one of the materials they excrete is alcohol. When a seal is not effective, Candida albicans can end up in the vial. If there is insufficient sodium fluoride in a tube, the organisms can also grow inside of it. When sugar and an elevated temperature are present, Candida albicans will generate ethanol by way of fermentation.

When fermentation occurs, the amount of alcohol discovered in a blood specimen is normally significantly higher than the amount of alcohol present in a person's body when he/she was pulled over for DUI. When fermentation occurs in a blood sample, your BAC level result can be two to three times higher than it was when the blood was actually drawn from your arm.

California Laws on Blood Testing

In order to minimize errors in blood testing, the puncture site must be swabbed before the draw. The correct amount of preservative power and anticoagulant power must be added to a vial. The blood and these chemicals must be mixed sufficiently and the sample must be kept in a controlled, refrigerated environment.

When it comes to blood testing, California requires (under California's Title 17 rules) the following:

  • Blood must be drawn by a trained technician
  • The blood site must be sterilized with something other than an alcohol based product
  • There must be adequate levels of anticoagulants and preservatives in the vial to prevent the sample from being contaminated or clotting
  • The blood sample must be properly stored
  • Blood must be stored in a secured area with a log book, so that it is documented who accesses the blood sample and when

Defenses for When a Blood Sample is Mishandled

If your blood sample was mishandled, a San Diego DUI attorney can fight to have the blood sample thrown out of court or can possibly even achieve a charge reduction or dismissal. When your blood is tested for DUI, an officer must inform you that you have the right to have the sample retested. If you choose to exercise this right, your sample can be retested by a private laboratory (this process is known as a "blood split").

An independent laboratory can examine your blood sample to see whether or not it was fermented or clotted. A competent DUI defense attorney will know what defenses could help absolve you of your charges, such as:

  • The rising blood alcohol DUI defense- meaning you were not driving with a BAC of 0.08% or higher, even though your BAC level registered 0.08% or higher at the time of testing
  • California's Title 17 rules were not followed and thus your sample should be thrown out

Remember: it is not against the law to have a BAC of 0.08% or above at the police station when your blood was taken. It is only against the law to drive with a BAC of 0.08% or above.

How can Attorney Mark R. De Yoe help?

If any error occurred during blood testing, Attorney Mark R. De Yoe will collect all the evidence he needs to expose sample inaccuracy. Sometimes a vial comes from a pre-prepared test kit, and if this was the case in your situation, Mr. De Yoe can make sure that the vial was vacuum sealed, that the right type and amount of chemicals were present in the vial and that the vial was not past its expiration date.

Questions that Attorney De Yoe will ask include the following:

  • Was the site disinfected before blood was drawn?
  • How old was the swab used?
  • Was the correct motion used (circular, beginning from the center and working outwards rather than back and forth which pushed the spore around).
  • Did the vial have the appropriate top seal?
  • Was the proper type and amount of preservative used?
  • Was the vial past its expiration date?
  • Was the blood and preservative properly mixed?
  • Was the blood sample

If you believe your blood test results were wrong, contact Attorney Mark R. De Yoe and he will put more than 30 years of legal experience to work on your behalf! Call our San Diego office today to schedule your free case evaluation!