In the state of California, if you are driving and a police officer pulls you over under suspicion of driving under the influence, the law requires them to administer several field tests. These field tests are to determine the level of intoxication a person is under. One of the most familiar field tests is a breathalyzer test. This test is administered when the officer asks you to breathe into a handheld gadget that can detect the alcohol content in your body. Should the officer discover you are driving with alcohol in your system above the legal limit, he will arrest you and take you to the station.
Once at the station, they can request you to submit to further tests that include blood tests. With the blood tests, the officers must have your consent to carry it or have a court order for it, unlike the case with a breath test. If you refuse to take either one of the breath or blood tests, it is considered an admission of guilt to driving under the influence. DUI charges will be brought against you as well as penalties for refusing a chemical test. If you find yourself faced with these circumstances, your best option is to get in touch with a lawyer. Call us at The DUI Defense Attorney, and we will gladly take up your case and give you an excellent defense.
An Overview of the Law on DUI Breath and Blood Tests in California
A prosecutor's case is often strengthened if the BAC results are above the legal limit. This makes blood alcohol concentration test vital in order to get a conviction. In California, you can be charged with a DUI if you are intoxicated from prescription drugs, alcohol, or illegal drugs. It is easy to get your intoxication levels if you are under the influence of alcohol, but if drugs, a blood test is required. To help understand the law around this, we will discuss the implications of a refusal to take the tests, when the law requires them, and how the tests are used as evidence.
The Law on DUI Blood Test
Any person driving within the state of California is assumed to have agreed to take a DUI breath or blood test if legally arrested driving while intoxicated. This is often referred to as the law of “implied consent.”
When a driver is arrested, they are expected to be presented with a choice of taking either the blood or breath test. However, there are exceptions to this that are:
- If the arresting officer reasonably believes the driver to be intoxicated by drugs other than alcohol, referred to as driving under the influence of a drug (DUID). If this is the case, there will be a requirement to draw blood for a test.
- The driver could be dead or is unconscious
- The hospital where the driver is taken has no equipment to test breath.
Which is the Preferred Test, Breath, or Blood Test?
Most individuals prefer taking a breathalyzer test to a blood test. Breath tests are not invasive and are faster, unlike blood tests. However, not every individual is able to take a breathalyzer test. Some medical conditions make it difficult for a person to blow strongly enough into the breathalyzer. In some cases, the driver may be dead or even unconscious if involved in an accident.
Some drivers opt for a blood test because it directly gives a measure of the alcohol in one’s blood. The breathalyzer measures alcohol content in the air found in the lungs. After, the results are converted using a formula called partition ratio to give an approximately give results equivalent to a BAC.
The fact is, each person has a different partition ration making breath tests, not the most accurate. For this reason, some people opt for blood tests to increase the accuracy level of their blood alcohol concentration measure. Another benefit of taking a blood chemical test is that in the event, more tests are required, there is always a portion kept safe for that.
Blood Testing for DUI and Regulations in Title 17
Procedures governing chemical tests for DUI in California are found under Title 17. The code of regulations gives the requirements for labs used in testing and the procedures for doing the blood tests.
According to Title 17, the set regulations for blood testing include:
- Having a medical professional or health technician to draw blood from the suspect immediately after the offense has happened
- Sterilizing the area where the test will be carried out with a different substance other than alcohol to contaminating the blood sample with more alcohol.
- Availability of a preservative and an anticoagulant for the viral in order to avoid clotting or contamination
- Equipment that is reusable should never be sterilized with alcohol or any organic solvents
- Integrity and identity of the blood sample should be kept through each stage so that there is a clear chain-of-custody, and it is undisturbed.
Should any of the above protocols or others fail to be followed, there may be a compromise in the blood test accuracy.
The Validity of Blood Tests for DUI in California
The law in California assumes that the results from a blood alcohol test were properly and legally obtained. What this means is that the defense is given the burden to prove if the procedures in Title 17 were not followed.
However, even if the defense can establish that the procedures in Title 17 were not followed, the drawing of blood is not invalid. What is most important is if the rights of the defendant were violated during the process.
Forced Blood Tests
Legally, the police are not allowed to take blood against the consent of the driver, unless with a warrant. This fact remains true even in cases where the police suspect the driver to be under the influence of drugs. Sometimes, however, a driver may be unconscious or dead, forcing the need for a blood test.
If an officer has a warrant, they can force the driver to submit to a blood chemical test. An officer is allowed to seek a warrant to have a blood test if they believe the driver is drugged or drunk and is responsible for an accident.
When this happens, the driver is taken to the nearest medical facility or hospital to have the test done. If the driver is resisting, the law allows the officers to restrain him to facilitate the drawing of blood by the lab technician.
Implications for Refusing to Take Chemical Tests (blood test)
The state of California does not consider it criminal if a suspect refuses to submit to a blood test upon a DUI arrest. However, refusal to take the tests has consequences on the defendant that include:
- A refusal will lead to enhanced penalties should the driver get convicted of a DUI crime
- An automatic suspension of the defendant’s driver's license by the Department of Motor Vehicles irrespective of the outcome of the criminal case.
It is important to note that the law enforcement officers do not require a warrant to ask the defendant to take a breath test. The law indicates that the constitutional rights of a driver are not violated by taking a breathalyzer test.
Independent Laboratory Tests
DUI blood testing law requires for saving of blood sample of the driver in the event they request independent analysis. This makes it an advantage to take a blood test instead of a breathalyzer test. The disadvantage of breath tests is that the outcome is on the spot, and there is no saving of breath for later testing in case you want to contest the results.
The regulations in Title 17 are that the police must save a part of the blood for a year, but in case the driver is deceased, the other blood sample is only stored for 90 days. Should the driver wish to have independent testing, the law allows for that, and the saved sample is handed over to the driver.
To do this, your attorney will be required to file a motion on “blood split.” This will allow the driver to have confidentially tested and analyzed in a private or independent laboratory of their choice. The results from the private lab may indicate the following:
- The blood alcohol concentration is below 0.08%
- The blood sample was contaminated and fermented
- The blood sample was handled poorly under improper refrigeration
- The blood sample may have been affected to the point of causing doubts in the lab conclusions of the police.
Challenging Blood Test Results for DUI in California
With an experienced attorney, there are various strategies to challenging the results from a DUI blood test. These are:
- Filling a motion that seeks exclusion of the results from being used as evidence
- Attacking the conclusion by law enforcers in order to have a plea bargain or a no guilty verdict
In addition to the above strategies, a lawyer can include other strategies such as:
- There being no probable reason to cause a traffic stop on DUI suspicion
- A rise in blood alcohol
If the defendant was forcefully made to have a blood draw, an attorney can bring this out skillfully during a trial.
Breath Tests for DUI in California
Upon being pulled over by an officer on suspicion of driving under the influence and prior to an arrest, the officer may request you take a breathalyzer test. This is known as the preliminary alcohol screening breath test (PAS).
Legally, should you refuse to take the test, there is no penalty for this unless you are below the age of 21 or on a previous DUI conviction probation. Unfortunately, the police are unlikely to tell you this fact during the incident. A preliminary alcohol screening test is a field test to test the sobriety level of the driver, just like the other tests. This is usually a tool to help an officer make a decision if to arrest you or not.
If you accept to take a breath test, the results therein will be presented in court to help get a conviction against you on a DUI charge. This is the reason many DUI lawyers will advise potential defendants against taking a preliminary test unless you are below the age of 21 or are on probation on a DUI conviction. If placed under arrest and are requested to blow into a device that is handheld, your lawyer may advise that you opt for a blood test.
Refusal to Take a Breath Test
After an arrest, refusing to take a breath test will lead to various consequences under the law. This is because of the law of implied consent. This law is applicable regardless of your agreeing to take a preliminary alcohol screening test. The implied law presumes the driver after getting arrested cannot legally refuse to take a test because they believe the arrest was unlawful. However, to drop the charges, the defendant must prove the arrest was illegal.
The law on implied consent also presumes that upon application to get a driver’s license, you consented to have a breath test. This is to determine your intoxication level if arrested on a DUI suspicion. Should you refuse, there are mandatory penalties that are imposed by the DMV.
Unreliable Breath Test Results
When an officer has reason to suspect the results from a breath test are unreliable, they will ask you to do urine or a blood test. This would happen because:
- The officer expected the results to be higher than what has come
- The device used in testing the breath has aborted your results
These two scenarios often happen when the breath machines are faulty. If the device is not working properly, the officer may ask you to try again. But if entirely unable to give readings and no other device is available, you will be asked to do different test.
Sometimes you may not be able to generate a sufficient amount of air to allow for results. A lot of lung air is required to make a device work and give accurate BAC results. This happens with individuals with low lung capacity making it impossible to take a breath test. If this is the case, it is important to let the officer know. If you don’t, the officer will assume it is a deliberate attempt to get the machine to fail in giving results.
Driving Under the Influence of Drugs
When an arresting officer suspects you are intoxicated by drugs, initially, you can be given the option of using either a blood or breath test. However, even after making a choice to take a breath test, you are likely going to be asked to do a blood test for DUI. This is requested when the officer is certain that the test will show drugs in your blood system.
The police can also opt to involve a drug recognition expert (DRE) to give further direction. From the way you talk, it will provide the officers with the indication they need to ask for a blood test. For instance, if you confess to having taken a single joint among other kinds of careless talk, you will be under suspicion. Some of the things that will arouse doubt suspicion include:
- Dilated pupils
- Negative Preliminary Alcohol Screening Test
- Increased pulse rate
The presence of these is an indication you are intoxicated by something else other than alcohol.
Using BAC results in the Court of Law
According to VEH 23152a, if a person is charged with a DUI offense can be convicted of the offense if found with a Blood Alcohol concentration that is above the legally accepted one. If your BAC is 0.08% or more at the time of your arrest, you are going to face penalties. The results can be used by the prosecution in enhancing their DUI charges against you.
If you drive a commercial vehicle and your BAC is found to be 0.04 or higher at the point of arrest, it is illegal. The levels of the BAC will, in most cases affect the penalties that you will receive. If a driver is below the age of 21, it is illegal for them to drive with a BAC of 0.01%.
The results of a breath or blood test play a significant role in convincing the court that you are guilty of the DUI offense you are being charged for. If found guilty of a DUI offense, you will face a variety of penalties. The penalties, however, are all depended on if the offense was charged as a felony or a misdemeanor.
Your Blood Alcohol Concentration results will also affect the penalties from the DMV. If your BAC is above the required limit, you may have your driver’s license suspended. In some severe cases, you may also have your license permanently suspended as well.
Finding a Van Nuys DUI Attorney Near Me
Getting convicted of a DUI offense can have a severe impact on your life. Your blood alcohol concentration levels, as well as breath tests, give the prosecution a stronger case against you. Failing to take any of the tests if arrested on suspicion of driving under the influence has its consequences. To help you fight these charges and get your life back, you need the services of an experienced DUI attorney. Contact us at The DUI Defense Attorney, and we shall immediately take your case and guarantee you the best defense. Call us at 818-253-1913 and allow us to help you.
Here are other law firms I recommend outside of Van Nuys if you are arrested in Orange County or San Diego: San Diego DUI Lawyer and Orange County DUI Lawyer