The Chemical Test for DUI
Riverside, San Bernardino, Los Angeles & Orange County DUI Criminal Lawyer & Attorney
Under the law in the State of California, anyone suspected of, and arrested for, suspicion of driving under the influence is required to submit to a chemical test (breath or blood) to determine the blood alcohol concentration of that person. Generally, the investigating officer, after* placing you under arrest, will ask you whether you would prefer to submit to a breath or blood test. It is your option, unless, for some reason one of these tests is not available at the station you are being brought to you (either because a nurse is not available to draw blood or a breath testing machine is not present/working at the location). A refusal to submit to such a test is a separately charged criminal allegation and may carry higher potential jail sentences. Furthermore, even if you refuse to provide either sample, the arresting police agency can elect to force a blood draw from you to obtain the sample anyway.
*The Preliminary Alchohol Screening Test (“PAS Test”):
Do not confuse the mandatory breath/blood test with the in-field preliminary alcohol screening test that is not required by law. The preliminary alcohol screening (“PAS”) test is an in-field breath test that an investigating officer may have asked you to submit to. Furthermore, even though you can refuse, the officer may not have been required to inform you of your right to refuse. Therefore, you may have submitted to both a PAS test as well as to a chemical test thereafter. This distinction is important because the PAS test is usually done in close proximity to the time of driving and the prosecution will argue it’s accuracy as to the level of your BAC. Your skilled DUI defense attorney from WILL & WILL, LLP, however, knows that these tests are sometimes inadmissible at a trial and will utilize their knowledge and experience to keep these results out, or only allow them to be used as another FST.
The Breath Test
If you chose to provide a breath sample,
you were asked to blow into the breathalyzer
machine two times. The reason for providing
two separate breath samples is to test
for correctness in the results. What
the tester is looking for are two samples
within .02% of each other in order
for them to be considered accurate.
There are also many factors that can
affect the breath sample you provide.
For example, if you burped or threw
up within 15 minutes prior to blowing
into the machine you would have a higher
concentration of alcohol in your mouth,
commonly referred to as “mouth alcohol”
and would therefore give a false higher
reading. For this reason, the law (pursuant
to Title 17) requires that the investigating
officer physically observe you for
a full 15 minutes prior to administering
a breath test. He/she will be making
sure that during that period of time
you have any mints, chew gum, eat,
drink, burp, vomit, etc… This 15 minute
time period may include the time during
which you performed FST’s, submitted
to a PAS, etc…
Attacking the Breath Test
The results obtained from a breath
test are generally easier to dispute
than those obtained from a blood
draw. The knowledgeable DUI lawyers
at WILL & WILL, LLP have many
methods they can utilize to attack
the validity of a breath sample.
The following are just two of the requirements that the arresting agencies must live up to in order for the breath test results to be upheld:
The breath machine was properly maintained and calibrated.
Once you decide to submit to a breath test under California’s chemical test requirement, two separate breath samples must be obtained. Assuming the breathalyzer machine is in working order, there is an acceptable variable of +/- .02% between the two samples provided. If your result is a .08%/.10% that means there’s an allowable error of 20%. That 20% can make a big difference in the outcome of your case. The skilled DUI attorneys at WILL & WILL, LLP know what a great difference this actually is and can utilize such a great discrepancy to argue the ultimate illegitimacy of the results.
The breath sample taken from you was properly obtained.
As previously mentioned, Title 17 of California law requires that the arresting officer observe your physical behavior for a minimum of 15 continuous minutes prior to administering your breath test to prevent improper readings due to “mouth alcohol.” The testing/investigating officer is making sure that during this period you did not burp, belch, regurgitate, or vomit and did not eat, drink, chew gum, have breath mints, etc... In addition, assuming you were properly observed for the full 15 minutes, you may have a pre-diagnosed medical condition which makes you an improper candidate for breath testing. Your WILL & WILL, LLP defense lawyer can discuss possible medical defense that you may have.
When you choose to hire the experienced and knowledgeable DUI defense attorneys at WILL & WILL, LLP to represent you in a DUI case where you have provided a breath sample for analysis, our lawyers will review all discovery related to the breath test to ensure that it was obtained properly and that it is accurate. If there is any basis upon which to attack the validity of the sample provided, we will find it!
The Blood Test
If you elected, on the other hand,
to provide a blood sample, the officer
will bring you to an area with a
licensed nurse who will do the blood
draw. This may occur at the
station, or at a local hospital.
While breath test results are available
immediately, blood test results are
not. You are usually able to obtain
the results of a blood draw 1-2 weeks
after the arrest date. Once you
receive the results of your blood
test, you should contact your DUI
defense attorney at WILL & WILL,
LLP immediately. In the event
the results are in question, we have
experienced independent criminologists
that can re-analyze a split of the
blood that was drawn from you after
the DUI arrest.
