California Criminal Lawyer Blog

Blood samples obtained in drunk driving cases are generally -- but not always -- analyzed as whole blood (sometimes called "legal blood"). If the sample is withdrawn for medical purposes, however, the test will probably be done with serum (often referred to as "medical blood"). Serum is the clear yellowish fluid obtained from separating whole blood into its solid and liquid components (usually by centrifuging the sample); the liquid portion of the blood is called plasma, which is similar to serum. A third method involves precipitating proteins from the blood sample and centrifuging it; the result is a clear liquid called "supernatant," which is then analyzed.

Will analysis of serum/plasma or supernatant result in the same blood-alcohol readings as analysis of the whole blood? In a study entitled Distribution of Ethanol: Plasma to Whole Blood Ratios, Hodgson and Shajani, 18 Forensic Science journal 73 (1985), scientists attempted to determine the answer to this very question. The conclusion: Blood-alcohol concentrations in plasma were approximately 11 percent higher than that of whole blood, and those in supernatant samples were about 5 percent higher.

Thus, for example, evidence of a subject's blood-alcohol analysis indicating a .10 percent BAC may in fact reflect a true .09 percent if the plasma separation method of analysis was used. This has been confirmed in another study in which researchers concluded that a "person with an ethanol concentration of [.09 percent] in whole blood could have a reported concentration above [.10 percent] if either serum or plasma is analyzed." Winek & Carfagna, 11 Journal of Analytical Toxicology 267 (1987). Since many states permit the three types of "blood samples" to be used interchangeably in blood-alcohol analysis, counsel should certainly determine which type was actually used.

A simple technique for visually demonstrating the concept of testing blood that has aged and been subject to possible fermentation is to bring in a fresh vial of blood and compare it to the evidentiary sample withdrawn months earlier from the defendant. The fresh blood will be bright red, while the test sample will be nearly black.
For a study that found that serum-alcohol concentration can be up to 20 percent higher than blood-alcohol concentration, see Frajola, Blood Alcohol Testing in the Clinical Laboratories: Problems and Suggested Remedies, 39(3) Clinical Chemistry 377 (1993).
For legal case decisions, see Commonwealth v. Wanner, 605 A.2d 805 (Pa. Super. 1992), where the defendant appealed his DUI conviction on the grounds that the evidence of his blood-alcohol concentration was based on tests conducted on blood plasma rather than on whole blood, as required by statute. The appellate court agreed, citing the Bartolacci opinion; although that case addressed the use of blood serum rather than plasma, both involved tests on only portions of the blood. The court further found that tests on plasma resulted in BACs 15 to 20 percent higher than tests on whole blood.

If you have been arrested for one or more domestic violence charges in Sacramento, you probably have a multitude of questions about what will happen and what to expect. Each case will have a large number of variable factors that will determine what will likely happen. Unfortunately all cases have the potential of ruining lives of adults and children. Here is an overview of what to expect following a domestic violence arrest in Sacramento.

Domestic Violence Arrest

Depending on your case, you may have a good idea why you were arrested or you may have no clue why officers took you away in handcuffs. Unfortunately law enforcement policies regarding domestic violence arrests are rather rigid and don't account for the fluidity of each relation dynamic. If officers are called out on a domestic violence call they will typically arrest the dominant aggressor. If no restraining or protective orders are in place, the officers do have a choice of whether to actually effectuate an arrest. They must however inform the alleged victim of his or her right to make a citizen's arrest. If there is a valid restraining order in place and the restrained party is in clear violation, the officers are mandated to make an arrest. If each party has protective orders in place, California Penal Code section 836(c) mandates the arrest of the dominant aggressor. To determine who the dominant aggressor was, law enforcement is to consider:

1. the intent of the law in protecting true victims of domestic violence from ongoing abuse
2. whether there are threats that create a reasonable fear of injury
3. whether there is a history of domestic violence between the persons involved, and
4. whether either person involved in the disturbance acted in legal self-defense

Booking and Bail in Domestic Violence Cases

After you are arrested for domestic violence charges within the county of Sacramento you will likely be taken to the Sacramento County Main Jail, downtown Sacramento. There you will be taken through the booking process. If the jail deputies determine that you are intoxicated they will place you in the "drunk tank" and wait for you to sober up. After being processed in, you will be taken to a jail cell. During the booking process you will typically be allowed to make a phone call and contact a bail bond agency. Your bail amount will likely be based on the charges you were arrested on. The Sacramento court provides a bail schedule that is available to the public. In some circumstances, the arresting officer may request an upward departure from the bail schedule. This is typically done in cases where the officer believes that you may be a flight risk. An on-duty judge will have to approve the upward departure. A bail agency will typically charge you 10 percent of the bail in order to post it for you.

First Court Appearance in Domestic Violence Cases

The first appearance in a domestic violence case is the arraignment. This is where the judge will inform you of the nature of the charges filed against you. You will also be asked whether you have hired an attorney, intend on hiring an attorney, or will opt for a public defender if you cannot afford a lawyer. In Sacramento the judge will typically not request that you enter a plea at arraignment. At arraignment you will likely also be presented with a domestic violence protective order signed by the judge. This order prevents you from contacting the alleged victim, from coming within a certain number of yards from him or her, and from owning or possessing any firearms. This is a temporary order that will cover the time period when the case is pending in court. The order also allows the named victim to record any unwanted contact or conversation with you. The order does not typically prevent the named victim from making contact with you.

Settlement Conference in Domestic Violence Cases

The second court hearing is typically a settlement conference. The term used in Sacramento county is "Superior Court Review" or SCR. This is typically the first chance for your domestic violence lawyer to discuss the case with the district attorney in the presence of the judge. These discussions happen in the judge's chambers. An offer is typically made by the district attorney's office and that offer is negotiated with the help of a fair judge. Because each case is different it is difficult to ascertain whether it will be a good offer or a bad one without looking at numerous factors. A good domestic violence attorney will be able to analyze your case and make an individual determination of whether an offer is fair or whether you need to fight the case to trial if needed. There can be one or more settlement conferences. If a felony case does not settle at the settlement conference stage it will typically be set for a domestic violence preliminary hearing. A misdemeanor domestic violence case will be set for trial.

Domestic Violence Preliminary Hearing

A preliminary hearing in a felony domestic violence case is a hearing before a different judge where the district attorney's office will have to produce some evidence to convince the judge that there is a reasonable possibility that the crime was committed. The standard of proof is low and the defense will typically not present any evidence so as to not show their hand before trial. The named victim may or may not be called to testify. Because hearsay is allowed at a preliminary hearing in California, the DA may choose to simply have the investigating officer testify and recite another witness' statements. Due to the very low standard of proof required in a preliminary hearing, in most cases a defendant will be "held to answer." The case will then be set for jury trial.

Domestic Violence Jury Trial

A jury trial is the culminating event in a domestic violence case. The named victim will have to be called to testify and his or her credibility will be subject to examination and cross examination. At the jury trial you, as the accused, will have the opportunity to testify. There is however no requirement that you testify or present any evidence and you may choose to rely on the prosecutor's failure to present enough evidence to convince a jury beyond a reasonable doubt. It is advisable that you hire an attorney experienced in domestic violence cases to represent you at a jury trial.

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