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Whenever a driver is arrested on suspicion of driving under the influence in California, he or she will be asked to submit to chemical testing and will be given the option of providing either a breath or blood sample. People often want to know which test they should take if arrested on suspicion of DUI.
It is important to remember that the tests described here refer to tests that are conducted after a person has been arrested for DUI. Under California’s implied consent laws, any driver on the road who is lawfully arrested for DUI is deemed to have agreed to submit to either breath or blood testing. Refusing to provide either a breath or blood sample will result in the driver being charged with driving under the influence in violation of California Vehicle Code Section 23152(a) in addition a refusal allegation. In addition, the driver would lose his or her license for a full year during which he or she would not be eligible for a restricted driver’s license.
Before a driver is arrested, the investigating officer will ask the driver to provide a breath sample on the officer’s preliminary alcohol sensor (“PAS”) device. The PAS device is a portable Breathalyzer that gives officers an indication of the driver’s BAC. Unless the driver is under 21 or already on DUI probation, the PAS test is not mandatory. Even though it is not required, there are situations where taking the PAS test may ultimately help the defendant’s case. In presenting a rising blood alcohol defense, PAS test results can be compared with BAC results from a later point in time to show that the driver may have actually been under the legal limit at the time of driving. In addition, agreeing to take the PAS test can show cooperation which is viewed favorably by some prosecutors and judges.
While both the breath and blood test taken after a defendant’s arrest can be introduced as evidence of the defendant’s BAC in a DUI prosecution, there are ways to challenge both tests. The Breathalyzer machine is typically stored at the police station and the defendant who chooses the breath test will be asked to provide a sample shortly after being arrested. The Breathalyzer machine is subject to regular maintenance and calibration and if there was a problem with the machine on the date of the evidentiary test, the results may be challenged in court.
The blood test is usually taken at a hospital or other facility and because the defendant must be transported, the blood draw usually does not occur until a significant amount of time has passed since any driving occurred. Because of this, drivers who had not been drinking recently may prefer the blood test, as the driver’s BAC may drop below the legal limit during the time it takes to prepare the blood draw. Drivers who have just consumed alcohol may be experiencing a rising blood alcohol level. It may benefit these drivers to select the breath test, as waiting too long may result in an increased BAC result.