Under California’s implied consent law, everyone who drives a motor vehicle in California has consented to supplying a sample of his or her blood or breath to determine if their blood alcohol content (BAC) is at or above the legal limit of 0.08 percent. You must also have been lawfully arrested for driving under the influence before an officer can request that you take a test.
A chemical test to determine your BAC can be either a breath, blood or urine test, though a breath test is considered the easiest to administer. Any chemical test consists of testing your bodily fluids but in California, you are only entitled to request a breath or blood test if alcohol and not a drug is suspected as urine tests are too unreliable to be an accurate indicator of your BAC.
The usual manner of testing your BAC is with a breath test since it is easily administered and carries little risk of infection. The purpose of the test is the determine the amount of alcohol in your breath that is actually in your blood.
There are numerous ways that a competent and experienced criminal defense attorney can challenge or attack the credibility of the breath testing instrument including procedural errors, a failure to properly calibrate the machine, to maintain it pursuant to guidelines, or by introducing evidence of your physiologic status at the time of testing that can render the results as unreliable.
There are also environmental factors and inherent inconsistencies or other errors that are unavoidable and which can produce discrepancies that can show a higher BAC result than you may otherwise have had.
A blood test is more accurate than a breath test. Still, the results are subject to challenge based upon the credentials and competency of whoever drew the blood, if the draw site was properly sterilized, if the vial was protected against contamination, if the sample was properly stored and if the chain of custody can be documented and has no omissions.
Refusal to Take a Test
When you are arrested for a DUI, the officer must properly advise you that you must take a chemical test or your driver’s license will be suspended for one year if this is your first offense and that you face revocation of your license for a longer period. The officer typically has a written implied consent advisory form that must be read to you verbatim.
A refusal to take a test can be reasonably construed as such by the arresting officer if you remain silent after you have been read or advised of the implied consent law, or if you are viewed as deliberately not blowing hard enough, unless you can show you were asthmatic or had some other respiratory condition that the officer was aware of and did not offer you an alternative.
You must also be aware that a refusal may be used against you in a criminal trial as evidence of your guilt, since the courts consider it an exception to the rule that you may not incriminate yourself. Further, you are subject to mandatory jail time for willfully refusing to take a chemical test.
Forceful Submission to a Chemical Test
Generally, if you refuse chemical testing, the arresting officer will simply note your refusal and proceed with booking you. In some circumstances, however, the office can force you to submit to a blood test, especially if you were involved in a serious injury accident or where someone was killed.
If you were lawfully arrested, the officer can use reasonable and not excessive force, which can include having several officers restrain you while blood is extracted from you. They may do this if:
- The circumstances requires prompt or immediate testing
- You were reasonably determined to be driving under the influence
- The test is administered in a medically approved way and there is no unreasonable risk of infection or pain
- No excessive force is used
If the proper protocol was not followed in forcefully withdrawing blood from you, the results may be successfully challenged.
Call the Law Offices of Ramiro J. Lluis
Facing a DUI charge or a related offense can result in possible jail or prison time, substantial fines, suspension of your driving privileges for months or years, and other adverse consequences on your life. If you have been charged with a DUI, call the Law Offices of Ramiro J. Lluis today for a free, confidential initial consultation at (213) 687-4412.