After getting pulled over for a minor traffic violation, you may expect a ticket and the costs of having to go to traffic school and paying a fine. A traffic stop can escalate quickly and the police officer may end up arresting you on suspicion of driving under the influence, even if you were driving safely. Part of a DUI arrest involves giving a breath or blood sample for the state to test to see if you were over the limit. In some cases, the police can force you to have your blood drawn, even if you don't consent.
Talking about your legal rights after a drunk driving arrest can be complicated. Depending on the situation, you can deny certain tests but not others. Each individual case is different. You should talk to an experienced California DUI defense attorney about your case to understand your rights. Contact a knowledgeable East Bay DUI defense lawyer to defend your rights.
Chemical Testing and DUIs in California
Chemical testing may come up in a few different ways as part of a DUI. To understand the laws surrounding chemical testing, it is important to know the difference between a test taken before an arrest and a test taken after an arrest. During a traffic stop, if the police suspect the driver may be impaired by alcohol, they may ask the driver to submit to a preliminary alcohol screening (PAS) test.
A PAS device is sometimes called a breathalyzer. This is what you might see on the TV show Cops, where the driver blows into a handheld device on the side of the road. This breath test is not required for most drivers. Only drivers who are on probation for a DUI and drivers under the age of 21 are required to submit to a PAS breath test. Otherwise, there are no penalties for refusal and it may not be in your best interests to submit to these tests.
Chemical Test After Arrest
The police don't need a PAS breath test result in order to make an arrest. If the police officer has probable cause that you are impaired by alcohol, drugs, or a combination of substances, you can be arrested for a DUI. As part of the booking process, the police will have the driver submit to a chemical test. Unlike the PAS test, a breath or blood sample after an arrest is not optional. You face penalties for refusing a chemical sample after a drunk driving arrest in California.
Under California's implied consent laws, drivers who are on the road have given their implied consent to submit to a chemical test if they were lawfully arrested for impaired driving. Even if you never expressly agreed, the court considers your consent to be implied if you were driving on California roads.
If you refuse a breath or blood test, you can lose your license for a year and face fines. Your refusal can also be used against you in court for a DUI charge. If you are convicted of a DUI after a test refusal, you may face mandatory penalties of extra time in jail and longer DUI school. Like multiple DUIs, the penalties may increase for test refusal if you have more than one DUI or more than one prior refusal.
Should I Submit to a Breath Test or Blood Test?
Drivers who are arrested on suspicion of driving under the influence of alcohol are given a choice of a breath test or blood test. Most drivers chose a breath test because it is easier and they don't have to deal with a blood draw. However, if the police suspect you are driving under the influence of drugs or a combination of drugs or alcohol, the police can require a blood test.
There may be problems with the testing of both a breath sample and a blood sample. Samples can incorrectly show the driver's blood alcohol content (BAC) as higher or lower than the actual level. Reasons for this could include:
- Lack of sterile handling
- Improper cleaning procedures
- Faulty instructions
- Failure to follow testing regulations
- Failure to properly maintain the machinery
- Mixing up samples
- Mislabeling samples
- Failure to calibrate the machines
Even if you provide a chemical test sample, you can still challenge the evidence in court. Your attorney can cast doubt on the reliability of the test by showing problems with the machinery or the way the test was conducted. If the court suppresses the chemical test evidence, the prosecution may not have much of a case and may even drop the charges. Talk to your East Bay DUI defense lawyer about the best strategies in your case.
Refusing a Blood Test
You may face additional penalties for refusing to submit to a blood test after a lawful DUI arrest. However, the police generally cannot force you to do a blood test without a warrant. If the police want to force you to give a blood sample, they can go to a judge to get a warrant to make you give a blood test.
If the police request a blood test under suspicion of a drug DUI, you can refuse but you will face additional penalties. Even without a blood test, you can still be convicted of a drug DUI. If the police go to a judge and get a warrant, they can force you to give a blood test. In some exigent circumstances, the police may also attempt to forcibly draw your blood.
Experienced DUI Defense Attorney
Don't wait until the last minute to call for help. If you act quickly, your DUI defense attorney can challenge your license suspension with the DMV so you can keep your driving privileges until you've had your day in court. You only have 10 days to request an administrative per se hearing with the DMV, so act now.
Lynn Gorelick has more than 39 years of East Bay DUI defense experience and understands the penalties involved with California DUI charges. She understands how to approach the individual facts of each case for the greatest chance of success to keep her clients out of jail. If you are facing drunk driving charges anywhere in Oakland, Alameda County, or Contra Costa County, contact Lynn Gorelick.