When you’re pulled over on suspicion of a DUI in California, the law creates a specific “contract” between you and the state known as Implied Consent. But what happens when the police fail to uphold their end of that deal? In a recent case out of Long Beach California, DUI Attorney Matthew Ruff argued for a license suspension to be set aside because the arresting officer ignored a mandatory statutory duty: the collection and retention of a chemical sample upon request.
The Core of the Argument: Mandatory vs. Discretionary
In this case, the driver consented to a breath test. However, California Vehicle Code § 23614 requires that if a driver chooses a breath test, they must be advised that since the machine doesn’t save a breath sample, they have the right to provide a blood or urine sample to be retained for future independent testing. This is often referred to as a “Trombetta Admonition”.
The defense’s argument centered on several critical points:
• The Advisement: The California Highway Patrol Officer advised the driver of the right to have a blood or urine sample collected and retained for future testing.
• The Request: The driver clearly asserted the right and requested that a sample be retained.
• The Failure: Despite this clear request, the officer failed to take the necessary steps to collect and retain that sample.
Attorney Ruff argued that the word “shall” in the Vehicle Code makes this duty mandatory. By failing to facilitate the collection, the CHP officer breached the statutory mandate and violated the driver’s due process rights.
Why Retention Matters: Title 17 and Due Process
Why is a missing blood sample such a big deal? It comes down to scientific integrity and due process.
• Title 17 Violations: California Code of Regulations (Title 17) requires that blood or urine samples be retained for one year so the defense can conduct its own analysis. By failing to collect the sample, the officer effectively bypassed these retention requirements.
• The “Unitary Investigation” Theory: Defense Attorney Matthew Ruff argued that a DUI investigation is a “unitary event”. If an officer fails to follow the law regarding the alternative sample, the “regularity” of the entire testing process is compromised.
• Constitutional Rights: Citing Brown v. Municipal Court (1978) 86 Cal App 3d 357, Matthew argued that denying an accused person the chance to obtain their own evidence prevents them from obtaining evidence necessary for their defense, which is a denial of due process under California law and a violation of their Trombetta rights.
The Remedy: Suppressing the Evidence
The ultimate goal of this legal challenge was the suppression of the chemical breath test results. When a driver is denied the opportunity to obtain their own sample, California courts have held that suppression of the results is the appropriate remedy to afford the individual a fair trial.
Without the breath test evidence, there is often insufficient evidence to support a finding that the person drove with a BAC of 0.08% or more. Matthew Ruff asserted, “the DMV cannot sustain a suspension when the evidence supporting it was obtained in violation of fundamental due process rights”.
Does your case involve a similar violation of your rights? Can the filing of a Trombetta Motion result in DUI charges being dismissed? For answers and information regarding these and other questions contact Matthew for a consultation.
Torrance DUI Attorney Matthew Ruff has over 30 years experience fighting charges where the police have violated the rights of the accused.
