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California DUI Breath/Blood Test Defenses

Licensed drivers should be aware of the common DUI laws that guide our highways. If you have a blood alcohol concentration (BAC) of 0.08% or higher, you are better off calling a taxi, uber, or a family member before you decide to drive. Driving drunk can result in the loss of civil freedoms and worse, a DUI may cause incalculable damages to the victims of a DUI car accident. In the worst of cases, a DUI can result in a murder felony which holds severe consequences. If your DUI did not result in bodily injury, it is crucial to keep in mind that even a DUI misdemeanor is a crime that will reflect on your rap sheet. Any subsequent DUI misdemeanors on your rap sheet will hold longer and more costly punishments. Eventually, if you reach a fourth DUI, the charge will be a felony for violation of California Vehicle Code 23152. A fourth offense is something that we all want to avoid if we wish to maintain our driving privileges.

In the state of California, a DUI offense is a  priorable offense meaning that the punishments become harsher every time an additional DUI offense is committed within a ten-year span. Since the consequences are high, law enforcement agencies must follow certain procedures in order to effectively convict an individual of driving while under the influence of drugs or alcohol.  An officer must find probable cause before conducting an arrest that would warrant a blood alcohol concentration test.

Before being submitted to a DUI breath, blood, or urine test there are a number of things that must occur prior to an arrest. DUI breath, blood, and urine tests are used to establish a driver’s blood alcohol concentration at the time of the arrest. When you are stopped by a police officer, the police officer must find probable cause in order to issue an arrest based on suspicion of driving under the influence. Upon the arrest, the licensed driver has given consent to the state authorities to conduct a blood alcohol test administered through a breathalyzer or through blood or urine testing. Once you are arrested, if you fail to comply with a BAC test, you may face jail time, license suspension, and/or ignition interlock device program.

In most cases, it is advised to comply with local law enforcement authorities in order to avoid additional charges. Refusing to comply with a police officer’s orders when you are stopped for suspicion of drunk driving, can result in the police officer using the refusal to comply as probable cause and may proceed with an arrest.

A DUI first offense is where you want to speak with a lawyer. An experienced lawyer is capable of dropping a first offense DUI to a lesser punishment under VC 23103.5 (wet reckless). Being charged with wet reckless will allow you to keep your driving license and your driving rights. However, the best way to fight a DUI is by contesting the procedures that were used to conduct a breath and/or blood alcohol content test. Breath, blood, and urine samples can easily be contaminated which can alter the outcome of a BAC test. In addition, there are a number of instructions that must be followed in order to properly executed a BAC test. For examples, the person administering the test must observe the driver for fifteen consecutive minutes prior to proceeding with a breathalyzer test. During this time, the officer must watch the driver ensuring that he or she does not vomit, burp, drink, eat, or do anything that may alter or contaminate a breath sample.

If you are charged with a misdemeanor for driving under the influence, you may want to contact a local state DUI attorney. The Jonathan Franklin DUI Attorney is capable of assessing your case and providing guidance in a courtroom. Upon review of your case, we will be capable of providing the right measures for your case in order to reduce a penalty or drop the charges. If you are charged with a DUI and you believe your breath and blood test were contaminated, you have more reason to contact an attorney. Do not let a false reading of your breath and blood test be the reason for a DUI misdemeanor on your rap sheet. If you wish to speak with an attorney you are encouraged to call us today at 323-464-6700.

Stop, Arrest, and BAC Test

In the state of California, the local law enforcement agency has the ability to stop any vehicle on the highway if there is suspicion of a vehicle code violation or if there is clear proof that there has been a violation of a traffic code. To be stopped by a police officer or highway patrol, there must be reasonable suspicion. Reasonable suspicion of a highway violation can including swerving, making a wrong turn, not using the correct turn signal, not using a turn signal at all, not making a full stop on a stoplight, violating the double yellow line, there are numerous reasons that can qualify as a reason to stop a driver.

Upon being stopped on the highway, the police officer or law enforcement agent will look out for any signs of drug, and/or alcohol use. While you may be stopped for reasonable suspicion, the peace officer will need to establish probable cause in order to proceed with an arrest. To establish probable cause, the officer will observe the drivers speech, glazed eyes, the scent of marijuana or alcohol, and open containers such as beers or liquor bottles. There are many ways that an officer can establish probable cause which can lead to a field sobriety test. A cop may ask you to submit to a sobriety test in order to establish probable cause. There are times when sleep deprived drivers must submit to a BAC test after failing a field sobriety test. A sobriety test is not mandatory, however, the police officer may view your resistance as probable cause and warrant an arrest for suspicion of driving under the influence.

Field Sobriety Test and Probably Cause

A field sobriety test takes place after a police officer has enough suspicion of a vehicle code violation. In some cases, the police officer may ask you to perform one of the following tasks in order establish probable cause.

  • Horizontal Gaze Nystagmus (HGN) Test: Individuals who are sleep deprived or under the influence of drugs or alcohol will exhibit slower eye movement. A police officer may ask you to follow the position of a pen. The officer will move the pen from side to side while observing the eye. If the eye jerks while following the pen, the officer may ask you to complete another sobriety test. In other cases, a police officer may continue with a breathalyzer test.
  • Walk-and-turn: The police officer may conduct a walk-and-turn test to test the driver's balance. Often, a drunk or sleepy driver will have a harder time following specific instructions that involve eye coordination and the ability to process instructions.
  • One-leg stand: The police officer may also ask you to step out of your vehicle and perform a one-leg stand test. In this test, the police officer will have you stand on either leg sometimes making you touch your nose and other times making you count out loud and/or while switching feet. In this test, the officer will instruct you to keep on foot at least six inches above the ground.
  • Preliminary Breath Test (PBT): The police officer may ask you to submit to a preliminary breath test administered through a hand-held breathalyzer in order to establish your blood and alcohol content at the time of the traffic incident. The handheld breathalyzer is not always accurate and can produce false readings.

A field sobriety test will allow a police officer to determine whether the driver is, in fact, driving drunk or unintentionally violated a highway code.  When the police officer has enough evidence to believe that the individual is driving under the influence of drugs and/or alcohol (probable cause), the police officer may proceed with an arrest for suspicion of DUI. Upon arrest, the driver will be required to submit to a blood and/or breath test.

To learn more about the DUI arrests, you may visit the Department of Motor Vehicle page at:

DUI Breath Test

When you are stopped, you may refuse to submit to a hand-held breathalyzer test if you are over the age of 21 and if you are not currently on probation. However, the refusal may be used as probable cause to establish an arrest. Upon being arrested, the police officer will take you to the police station where you will be required by law to submit to a chemical test. Refusing to submit to a breath, blood, or urine test at the police station can result in administrative suspension of your license. What's worse is that in some states, a police officer may seek a judge's approval to collect a blood sample. If a police officer receives a warrant that allows him to collect blood, you will be transported to a medical center where your blood will be retrieved by force if necessary. Refusing the blood alcohol concentration test in a police station may lead to greater consequences which is why you should follow police orders after you have been arrested.

In order to conduct a lawful DUI test, the officer administering the test will need to follow certain protocols including:

  • The police officer must be trained to conduct a proper DUI breath test
  • The police officer must continuously observe the driver for fifteen minutes
  • This means that the officer cannot be on his or her phone, reading a book or newspaper, or any other activity that is not keeping an eye on you. Your police officer needs to be aware of any activity that can result in the contamination of a breathalyzer test.
  • Making sure that the appropriate device is used to conduct the breath test
  • Making sure that the testing device is regularly tested and calibrated.

Keep in mind that the initial breathalyzer test is only used to establish probable cause. The evidence found through the initial breathalyzer test cannot be used against you in a courtroom. The evidence found at the police station, on the other hand, can and will be used against you in a courtroom.

DUI Blood Testing: Title 17 California Code of Regulations

A DUI blood test is much more reliable than a breath test. However, there are times when the blood is not stored properly which can lead to contamination. The likelihood of contamination is not very high which is why after a blood test, it is crucial to contact a local attorney to learn of ways to protect yourself against a DUI. In refusing a blood test, you may face additional charges in a courtroom for refusing to comply.

The Title 17 of the California Code of Regulations explains specific requirements in order to yield an accurate BAC test result. In conducting a BAC test, the police officer is required to observe the driver at least for fifteen continuous minutes. On top of the fifteen-minute observation, Title 17 also includes literature on 1) how the test is administered, 2) the regular calibration and maintenance of testing devices, and 3) how the blood sample is collected and stored. Failing to follow the regulations under Title 17 can result in the dismissal of your charges.

When you speak with a local state attorney, you should include as many details as you can about your incident with the law enforcement agency. The more we know, the better equipped we will be to help you fight your DUI. If you wish to discuss your traffic violation with an experienced DUI attorney, you may contact the Jonathan Franklin DUI Attorney at 323-464-6700. Do not let false charges ruin your life. Having a DUI on your record can lead to a variety of penalties that can greatly restrict your civil liberties. Our attorneys understand that every DUI case can hold serious consequences which is why we handle every case with the utmost attention to detail. We believe that at the very least we can help reduce certain penalties if you are convicted of a DUI. To learn more about your specific case, contact us today.

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Contact Information

Jonathan Franklin DUI Attorney
6777 Hollywood Blvd Ste 508
Los Angeles, CA 90028