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Can I Choose Between a Blood and a Breath Test?

Posted by Christopher Martens | Apr 01, 2016 | 0 Comments

Knowing what your rights are during a DUI arrest, or any arrest for that matter, can help you make the right decisions to protect your interests. Even knowing your rights after the fact can help you built a strong defense in court. Ideally, the arresting officer would inform you of your rights, but this isn't always the case. Once arrested, you are required to submit to a blood alcohol concentration, or BAC, test. California's implied consent law put this requirement in place. Under this law, California drivers must submit to a BAC test but not specifically any one kind. Your BAC can be tested three different ways: through your breath, blood, or urine. You have the right to choose between a blood and a breath test. A urine test can only be given if these two options are not available, if you are a hemophiliac, or on an anticoagulant medication.

Now that you are aware that you do have a choice, you may be wondering what option is the best. Both the blood and the breath BAC tests are rated to a high level of accuracy. With any method of testing, however, there are things that can weaken the reliability of the test results. The breath test measures grams of alcohol in every 210 liters of breath. Breath tests test for mouth alcohol content, not for direct blood alcohol content. It is presumed that they are the same, but some foods and medical conditions can give you a false positive because they elevate the alcohol levels in your breath but not your blood. Breathalyzer test results are frequently challenged in court. Each breathalyzer device needs to be up to code. It must be properly maintained and calibrated on a schedule, and there should be thorough records of all work done on the device. A trained officer should administer the test. Although they seem like an easy and accurate method of testing your mouth alcohol, the results could be compromised if the device was not maintained or recently calibrated or if it was not used by a trained officer. It is not uncommon for these things to be overlooked by the prosecution, so it is up to you as the defendant to question and challenge the validity of the test results.

Blood tests directly test your blood alcohol concentration. The blood test measures grams of alcohol per 100 milliliters of blood. They yield accurate results when the blood sample is collected, handled, and stored properly. The result may be inaccurate if the sample was not collected properly and by an approved technician or was not handled and stored as it should. One of the benefits of having the blood test is that blood, when stored properly, is relatively stable and can be stored for a period of time. With a blood test, you have the option of using some of your blood sample to have it independently tested at your expense. This can ensure you of having an unbiased result from a professional laboratory. Both options have their strengths and weaknesses. Breathalyzer tests may be more frequently challenged in court, but you do not have the option of having your own analysis done with your sample. The breathalyzer test is quick and easy, while the blood test takes more time and is invasive. Both options produce accurate results, and no one option is more foolproof than the other.

Think twice before you refuse to submit to a BAC test if you are arrested for a DUI. Under California's Admin Per Se law, the DMV will automatically suspend your license for one year if you refuse to take or fail to complete a BAC test with a lawful DUI arrest. Along with a mandatory one-year license suspension, you will be ineligible to apply for a restricted license during that period. . If you refuse and you are on probation for your first DUI offense, your license will be revoked for two years.

Speak with an experienced California DUI defense attorney if you have questions about your rights during the DUI arrest process. While law enforcement may not inform you of all your rights, you can still exercise them. Not being given a choice between the blood and breath test is not enough to dismiss your case, but an attorney can advise you of your defense options based off of which test you took. Both have their pros and cons and differ in their levels of reliability.

If you are in the Tulare, Fresno or Kings County area and have questions about your rights during a DUI arrest, call experienced domestic violence defense attorney Christopher Martens today for expert counsel. At The Law Offices of Christopher Martens, we know how to prepare you to successfully defend your case and will not be afraid to take your case to trial. With over ten years of exclusive criminal defense experience, attorney Martens is ready to defend your rights. Contact our Visalia or Hanford, CA offices at 559-967-7386 or email us at [email protected] to discuss a possible plan of action for your case.

About the Author

Christopher Martens

Bio Visalia and Bakersfield criminal defense attorney who has dedicated his life to helping those who have been accused of crimes or injured due to the negligence of others.


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