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California DUI Breath/Blood Test Defenses

In many of the driving under the influence, or DUI, cases in California the outcome hinges on a blood or breath test. One or both of the tests will most likely provide a foundation for any DUI case. If test results include a blood alcohol concentration of 0.08 percent or greater, a driver will most likely face DUI charges. The BAC of 0.08 percent or more is above the legal limit to operate a motor vehicle in the state. A driver charged with DUI will likely face penalties that include possible fines, jail time and license revocation or suspension.

Please remember that failing a blood or breath test does not mean that you will be or should be convicted of DUI. It does not mean that you had an illegal BAC level at the time you were tested. An experienced Los Angeles County DUI lawyer will provide an aggressive defense against the DUI charges. The actual strategy used will vary depending on the following five defenses that can be used in your case:

Police did not complete a proper 15-minute observation period before starting the test.

In California, an officer is required to observe you for at least 15 minutes prior to administering a Breathalyzer test. The observation period cannot include any breaks. A driver is not allowed to drink, eat, smoke, belch or vomit during the timeframe. If the observation period is not properly conducted, your lawyer could use it to your advantage.

The blood or breath test was not completed according to regulations.

The specific requirements for chemical testing in the state are outlined in Title 17 of the California Code of Regulations. The requirements are to make sure the tests yield accurate results. Along with the 15-minute observation period, other things are included in the regulations such as:

  • The manner which the tests are administered.
  • The testing instruments such as breath test devices.
  • How blood is collected and stored.
  • Circumstances where violations of the regulations can lead to a dismissal.
  • Situations where “mouth alcohol” causes inaccurate breath tests readings.

Breath tests test the air located deep in a driver’s lungs. However, there are times that a substance such as alcohol could be in the mouth and interfere with the test. There are certain things that can cause mouth alcohol such as:

  • Vomiting or burping within a 15-minute period prior to taking the test.
  • The driver suffering from a medical condition.
  • The driver using mouth spray or mouthwash.
  • The driver recently having dental work done.
  • The driver having some substance caught within his or her teeth like food.

All these things can cause a higher than normal BAC level on a test.

The test was conducted after the driver was in the vehicle and his or her BAC was still rising.

Your body takes time to absorb alcohol into your system. How fast it absorbs the alcohol varies based on factors like metabolism, diet and weight. Additionally, if you consume an alcoholic beverage, immediately drive and get stopped by police you will have a low BAC. However, if you are tested three hours later you will most likely have a high BAC. This could be another reason you failed the BAC test.

There are a number of factors that could change the outcome of your BAC test. It is your defense lawyer’s job to investigate all details of your testing to determine if there were any violations. 

Want to learn more about chemical test defenses? Looking for help with a DUI case? Contact the Law Offices of Jonathan Franklin today to schedule a free consultation.

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