Blood & Breath Once someone is placed under arrest for driving under the
influence of alcohol or drugs, they are told that they have a choice of
chemical tests that they must take. According to California's "implied
consent" law, the person arrested has a choice of taking a blood or breath
test if the arrest is alcohol related, or taking a blood or urine test
if the arrest is drug related. REMEMBER, BEFORE YOU ARE PLACED UNDER ARREST,
YOU DO NOT HAVE TO TAKE THE BREATH TEST ON THE SIDE OF THE ROAD. It is
only when you are arrested that the "implied consent" law comes into effect...at
which point you have your choice of either blood or breath test to be
given at the police station. There is no right to consult with a lawyer
prior to taking the chemical test.
A good lawyer will make sure that the chemical test was properly done,
and if not, a good lawyer will use that to try and prevent his client
from getting a DUI. Title 17 of the California Code of Regulations,
sets out the requirements for proper chemical testing in California.
When these standards are violated or ignored, the result of the test
is unreliable, and should not be the basis of a DUI conviction or a
D.M.V. license suspension.
Refusals: When the accused refuses to take a blood, breath, or urine
test, this refusal can be used as evidence that the accused knew they
were drunk, or that they were "conscious of their guilt." This may lead
to increased penalties in the criminal court case. The D.M.V. will also
use this refusal to lengthen the period of time that they suspend or
revoke the driver's license (using this to enhance the punishment in
the event of a conviction).
No matter what chemical test you chose, or if you refused, it is important
to contact an experienced, knowledgeable DUI lawyer. These tests have
limitations, and are prone to human error. Many cases that seem insurmountable
can be defended based on problems with the chemical test.
"Mythbuster" TV video on the Breathe Test