In the state of California, if you are arrested for DUI the “implied consent” law requires that you submit to a chemical test of your blood or breath (and urine if other tests untraceable or in hospital) in order to determine your blood alcohol content (BAC). Failing to do so can result in serious consequences including mandatory jail time, driver’s license suspension or revocation for anywhere between one and three years (depending on the number of previous DUI convictions you have had), and a longer term in California DUI school.
Additionally, when your license is revoked or suspended for refusal to submit to a chemical test, you cannot drive at all. Not even on restriction. Even though consenting to a chemical test is required after a DUI arrest, California law does not specify which type of chemical test you must consent to.
At the time of your arrest, the officer should inform you of your right to choose either a breathalyzer test or a blood test to determine your BAC. Unless you are currently taking an anticoagulant (which affects the body’s ability to form clots in the blood) or suffer from hemophilia (which could result in excessive bleeding), you should ALWAYS refuse a breathalyzer test and submit to a blood test pursuant to the officer’s statement that you are required by law to submit to a test (no real consent – submission).
Why Choose a Blood Test Instead of a Breathalyzer?
There are a number of reasons that you should always refuse a breath test and submit instead to a blood test.
- Reliability: Breathalyzer tests are notorious for a host of errors that can produce falsely high readings. Improper calibration, operator error, or environmental contamination can cause readings to be inaccurate. Additionally, some medical conditions can result in a false positive reading.
- Further Testing: Unlike blood samples, breath samples cannot be preserved, making it impossible for a DUI lawyer to request an additional sample for further testing. While the accuracy of a breathalyzer reading can be challenged in court, a DUI lawyer would have no duplicate sample to compare the initial result to. When a blood test is conducted, at least one vial of blood is preserved. The results can be double-checked. If the subsequent analysis reveals a lower blood alcohol level or fermentation, an array of options exist to either achieve a not guilty verdict or a possible reduction of penalties.
- Fuel for Defense: Even with the errors and inconsistency commonly involved with breathalyzer machines, jurors typically view the reading provided as set in stone evidence. When you opt for a blood test instead, a DUI lawyer can demand that the lab technician who performed the initial test appear in court for cross examination. Additionally, the entire procedure involving the blood test can be challenged and any errors or inconsistencies can be used to convince the jury that the prosecution did not meet its burden of proof to show proper procedures followed.
In essence, a blood test simply affords a DUI lawyer more opportunities to dispute your DUI charges than a breathalyzer test offers. There are additional legal issues raised regarding consent to a warrant-less search and the fourth amendment.
If you’ve been charged with DUI in Los Angeles, call Jon Artz to discuss your case at 310-820-1315.