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Can I Get My Own Chemical Test After a DUI?

The strongest evidence the court may have against you in a California drunk driving case is chemical test results. A chemical breath or blood test taken after your arrest shows your estimated blood alcohol content (BAC) at the time of testing. Many people arrested for a DUI plead guilty based on this evidence without ever challenging the test results. 

Drunk driving chemical test results are not always accurate. Chemical breath and blood testing can be compromised by machine error, improper testing procedures, or human error. However, what options does a driver have after they are arrested to get an independent chemical test to show their blood-alcohol level?

Drivers can request an independent test of the blood samples taken after a DUI stop. Parts of the blood samples are retained for a period of time and your attorney can have the blood sample tested at an independent lab to provide a second opinion of your BAC at the time of testing.  

There are several legal defense strategies available after a drunk driving arrest to keep your record clear and keep your license. Contact an experienced California DUI defense lawyer in Alameda or Contra Costa County who can explain your rights and legal defense options after an East Bay DUI.

Blood Split Motions to Test DUI Chemical Test Results

A “blood split” motion is a court procedure to request a sample of the blood draw taken after a drunk driving arrest for independent testing. When the driver requests a blood test instead of a breath test after a DUI arrest, the blood sample is supposed to be stored for one year. 

Through a court motion, or by subpeona, the defendant can have the blood sample tested by an independent lab. The independent lab could show different results or problems with the way the blood sample was taken, handled, or stored. This evidence could be used to support the defendant's case to win their trial or have the charges dropped. Talk to your California DUI defense lawyer about how an independent blood test could help your case.

Chemical Testing After a Drunk Driving Arrest in California

As part of a standard drunk driving arrest in California, the police will require a chemical test of your breath or blood. Chemical breath and blood test results are generally used in court to show the driver's blood alcohol in support of criminal drunk driving charges. If a driver's BAC is 0.08% or higher, the driver can be convicted of a per se DUI. 

The breath test for a DUI is separate from a preliminary alcohol screening (PAS) that the police may request during a traffic stop. The police may ask for a breath sample during a traffic stop, which is sometimes called a roadside breathalyzer test. However, unlike a breath sample after arrest, a roadside PAS device test is not required. You are free to refuse a roadside breath test just as you can refuse field sobriety tests.  

Can I Refuse a Chemical Test After a DUI?

There are penalties for refusing a chemical test after a DUI. Under California's implied consent laws, drivers are deemed to have given consent to chemical testing of blood or breath for the purpose of determining the driver's BAC, if lawfully arrested for a drunk driving offense. 

If a driver refuses to submit to a breath or blood test, the driver can still be convicted of a DUI. Refusal can be used against the driver in court. Test refusal can also result in an administrative driver's license suspension for one year. However, there are defenses to an alleged “ refusal”.  Multiple chemical test refusals can result in a license suspension for 2 years. 

Blood Test or Breath Test for a DUI

Under California law, a driver arrested for an alcohol DUI has the choice of whether the test shall be of their blood or breath. The officer is supposed to advise the driver about their choice of tests. If the driver submits a breath test but the officer has reasonable cause to believe the driver is under the influence of drugs, the officer may be able to require the driver to also submit to a blood test. 

Most drivers who are arrested on suspicion of a DUI opt for a breath test because it is easier and less invasive. However, there are some benefits to submitting to a blood test, especially if the driver wants to challenge the test results down the road.

Problems With Police Chemical Test Results

Breath tests are submitted using a large machine that analyzes the breath sample for the presence of alcohol. Based on the breath sample volume and alcohol levels, the machine can estimate the driver's blood alcohol level. Even though the testing device manufacturers, police, and prosecutors talk about how accurate these machines are, there are flaws with their test results. 

Breath and blood chemical testing can be prone to errors. With a breath test, the police are supposed to follow strict guidelines with timing and observation of the defendant before and during testing. The police are also supposed to provide clear instructions on conducting the test. If the police cut corners, are busy multitasking, or make an error during the testing, it could compromise the test results. 

There can also be problems with the test samples and the machinery. These testing machines are supposed to be properly cleaned, maintained, calibrated, and kept in proper working order. Test samples could be cross-contaminated or tainted by improper handling. Any of these errors may result in an inaccurate test result that puts the driver at risk of an unjust criminal conviction. 

Independent Testing Options for Blood Draws

Impaired driver breath test samples are not saved. However, after a blood draw for a DUI, blood samples are maintained and can be used for later independent testing. Blood samples shall be collected as soon as feasible after an alleged offense and processed. Under California law 17 CCR § 1219.1, “In order to allow for analysis by the defendant, the remaining portion of the sample shall be retained for one year after the date of collection.”

After a Drunk Driving Arrest in East Bay California

Don't plead guilty to a California DUI before you've had a chance to talk to an experienced attorney about your legal options. East Bay attorney Lynn Gorelick has more than 39 years of DUI defense experience and understands the consequences for drivers after an arrest for driving under the influence. Representing individuals in Contra Costa and Alameda County, Lynn Gorelick is familiar with the local DUI defense laws, local officers, and the prosecutors involved. Contact East Bay DUI lawyer Lynn Gorelick today.

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