DUI Breath and Blood Tests

DUI breath and blood tests are lawfully defined under California's Consent law. The implications of the consent law are that drivers have consented to submit to a DUI breath and blood chemical test. The test, however, applies where one is legally arrested for driving under the influence. The chemical test is meant to ascertain blood alcohol concentration (BAC) or the drug content in a person's blood circulatory system. Nevertheless, for the arrest to lawfully graduate to a test, the enforcement officer must have sufficient proof that the driver had indeed been driving under the influence of alcohol. California's consent law generally allows the driver to choose between a breath and a blood test. There are cases where neither the breath nor blood tests are advisable. Such instances would occur when the driver is suffering from either hemophilia, taking a dosage of anticoagulants for severe heart conditions, or asthmatic conditions. In such cases, the driver must, therefore, submit to a urine test.

Moreover, before submitting to the test, the officer must explain the legal implications of refusing to take the test. The explanation must take into consideration the consequent charges, court fines, losing the driving license, and duration of the jail term if convicted. The consent law also implies that the driver has no right to speak to an attorney prior to taking the test. The officer must also explain to the driver that refusing the test can be used against them in a court of law.

Normally, a warrant is granted to the officer to draw blood from the driver after an arrest is made. When the driver is stopped along the road, the officer gives them field sobriety tests. According to California law, failing in the field tests calls for a hospitalized DUI blood test. The tests are initiated by a clinical practitioner after which the technical analysis provides sufficient detail to be presented in court proceedings.

Below are provisional exceptions that determine whether it is lawful to initiate the breath or blood test. These provisions call for a mandatory blood test despite the fact that drivers must always be given a choice between a breath and blood test.

1. The enforcing officer has sufficient proof and a reasonable background that a driver was driving under the influence of alcohol. Therefore, in such a case, a blood test is unavoidable;

2. The driver is either deceased or unconscious;

3. The driver has been taken to a clinical facility where breath testing is not available, thereby influencing the need for a blood test.

One of the frequently asked questions on DUI breath tests is whether the breath test can accurately reflect one's Blood Alcohol Concentration. The altercation, in this case, results from a plethora of errors that put breath tests into question. Below are reasons why breath tests have historically been at the backend of appropriately determining alcohol and drug content in one's blood.

• An instance of rising blood alcohol levels or residual mouth alcohol may inflate one's alcohol level. The level would, therefore, alter the breath test results;
• Where the administering officer fails to follow the correct procedure for breath testing as stipulated in title 17 of California's regulations code;
• An instance of a high protein diet or low carbohydrate diet on part of the driver;
• Where the driver is suffering from gastroesophageal reflux infection and backs sufficient proof that the medical condition could trick the breath testing device.

California DUI law allows two types of breath tests. The categorization of both types depends on the stage of initiation. The tests include;

1. Preliminary alcohol screening (PAS) tests

The Preliminary Alcohol Screening test is initiated along the roadside. It is given during a DUI traffic stop and investigation block. When a driver has pulled over or stopped at a DUI checkpoint. The preliminary alcohol screening test is taken before an arrest is made. The test is usually initiated from a handheld breath testing device. A good example of these devices is a breathalyzer. The mandate to take this test is at the choice of the driver. Where the driver does not want to take the test, they may freely refuse to do so. There are exceptions to drivers who are required to freely take the test. These exceptions imply that the test is mandatory upon the following provisions; that the driver is currently on DUI probation; the driver is below the age of twenty-one; under a DUI investigation for underage DUI criminal charges where the driver is also underage and being investigated for violating the zero-tolerance law for below age drivers.

People frequently ask about the implications of failing to take PAS test when called to take one. Under California law, refusing to take a PAS test is considered a chemical test refusal. The act automatically results in the suspension of the driver's license. The suspension is compulsory whether the driver will be convicted of the crime or not. The PAS test is meant to help a traffic enforcement officer to decide whether to arrest a driver or not. The arrest is therefore based upon driving under the influence charges. For the charges to take root, the driver must have prior or an ongoing DUI probation. Where the driver is under the age of twenty, suspending the license is mandatory. Otherwise, there are no penalties for refusing to take a PAS test. The reason lies in the fact that a PAS test is treated as an FST (Field Sobriety Test).

2.Post-arrest evidentiary

The post-arrest evidentiary breath test is usually given from a desktop workstation at the police station, or at a Californian mobile sobriety checkpoint (Mobile Police Unit). This test is mandatory for all drivers legally arrested and charged for DUI. The provision also states that a driver must take the post-arrest evidentiary breath test even where they have taken the PAS. It is also not mandatory to take the test, only upon the following exceptions:

1. Where an officer believes that the driver was driving under the influence and has sufficient proof backing the claim. In this case, a blood test is recommendable;

2. In case of the driver being unconscious or dead;

3. Where the driver cannot blow hard enough during the breath test;

4. Where the driver is dead or unconscious;

5. Where due to the arising need of clinical care, a driver has been taken to a facility where breath testing devices are not available.

California's DUI consent laws in some counties provide for post-arrest breath tests. The tests are conducted on the Portable Evidential Breath to Alcohol Testing System (PEBT). PEBT is built on top of the Draeger Alcotest handheld breathing test equipment. The devices are used by numerous police departments for preliminary Alcohol Screening. What differentiates a PEBT from a normal breathalyzer is the fact that the PEBT can be connected to a hardline or a Bluetooth printer. The problem with these testing is that it turns out to be a post evidentiary screening instead of a PAS. Law firms, therefore, recommend that a driver that has pulled over and is arrested should not take a breath test on any of these mobile test units. We, therefore, recommend that instead of taking a field breath test, you instead should ask for a blood test.

Some drivers may prefer blood tests while most of them remain to elect breath tests. Evidently, the breath test is simple, quick and less invasive. The disadvantage associated with breathing tests is that not everyone should be subjected to it, especially those people suffering from asthmatic conditions and emphysema. This variety of drivers cannot blow hard enough into a breathalyzer and they are therefore considered for a blood test.

Blood tests are preferred sometimes because they can accurately determine the percentage of alcohol in someone's bloodstream. The difference between the blood and breath tests is therefore significant given that the breath test measures the amount of alcohol in deep lung air. The concentration level is afterward converted mathematically to an approximated equivalent of Blood Alcohol Concentration (BAC). The conversion formula is based upon a formula called the partition ratio. The ratio is fixed by law but each individual has a unique partition ratio. Blood tests accuracy is therefore perpetuated by the individual partition ratio and thereby deemed as the most accurate test than a breath test. A sample of the blood can also be saved for future testing. It is an advantage because the court can easily refer back for testing in case need for clarification arises. The saving benefit is a major advantage of blood tests when distinguishing between breath and blood tests.

itle 17 is the section of California law that stipulates the procedures for DUI chemical tests. The provisions take into consideration the physical environment that favors conducive testing as well as laying out the step by step procedure for carrying out a DUI blood test. The provisions and regulations include the following;

• Presence of an anticoagulant or the appropriate preservative in the vial. It helps to protect the person from contamination
• Sterilization of the equipment is mandatory and the sterilization agent should not be a product manufactured from alcohol.
• All reusable equipment used during the testing must not be placed on an alcohol based conservative or any other type of organic product.
• Chain of custody must be established throughout the subsequent stages in order to maintain the integrity and identity of the sample.
• A certified and specified health technician must draw and test the blood immediately or as soon as possible after the alleged criminal offense.

Where any of the above-stipulated regulations are not followed, the results of the test are deemed as compromised. Such an altercation would therefore and possibly result in the dismissal of a DUI charge.

Blood tests in California are deemed as valid despite the complying rules and regulations. The law presumes that the blood tests were appropriately conducted. The court, therefore, leaves the defense team with the task of establishing whether the stipulations on title 17 were properly followed. Despite the fact that the defense could prove the stipulations were not complied with, a blood draw may not necessarily be deemed as invalid.

Law enforcement officers are not allowed to take blood test samples from a suspected DUI driver against their will. Unless the police officer has a warrant, the suspect is supposed to submit to the test. This provision holds evident even where the police officer suspects the driver of drug usage. The United States fourth amendment provides that warrantless blood tests can be taken after a drunk driving arrest has been made. The officer is also allowed to seek a warrant in case they suspect a driver of careless driving under the influence of a drug. An officer who believes the driver might have caused or could actually cause an accident is also allowed to seek a warrant.

Where the officer has a warrant, they could force the DUI suspect to take a blood test. When this happens, the police officer takes the driver to a nearby hospital or medical facility. To allow a smooth drawing of blood, the suspect is restrained by any sufficient number of officers.

California laws stipulate the suspect's blood should be saved for independent testing. Therefore, it is an advantage over breath testing because it allows room for clarification where doubts are prevalent. Breath test results are instant and quickly recorded. Therefore, saving a breath sample is impossible. Title 17 allows police departments to retain the suspect's blood samples for one year after collection. Where the driver is deceased, the provision allows the reduction of this duration to ninety days. During the proceedings, the technical lab avails the blood sample to the suspect in case they prefer independent testing.

Well versed DUI defense attorneys have three major strategies for tackling the ins and outs of DUI breath and blood tests. A lawyer may decide to pursue any of the two or even both to challenge the proceedings. The strategies include; the lawyer could file a motion that excludes the test results from being used as evidence and an effort to raise a DUI bargain plea of not guilty verdict during the trial by aggressively and persuasively attacking law enforcement conclusions.

The attorney is, therefore, supposed to take one of the above routes. To successfully navigate through the case and challenge the test results, the lawyer can incorporate other DUI defenses such as rising blood alcohol levels and lacking sufficient backing for a DUI traffic stop.

A knowledgeable attorney is an added advantage where the suspected driver was a victim of a forceful blood draw. The defense attorney would easily challenge the trial successfully in such a case. You should, therefore, discuss the details of the event that your test was conducted. It is unwise, according to California law to conduct an unexpected blood draw from a DUI suspect.

You require a highly trained and experienced DUI defense attorney to challenge a DUI breath and blood trail. A well-versed lawyer holding a strong background of handling DUI charges is a priority for one to win a trial. Our Vista DUI Attorney Law Firm is proud to have a plethora of certified attorneys that can easily challenge breath and blood test results. We serve clients living in and around Vista. Call us at 760-691-1540 to seek further advice on what path your DUI breath and blood test may take.