Refusing the Breathalyzer Test: Fresno Drunk Driving Defense

Jul 19, 2017

A DUI in California is expensive and has major consequences. Aside from the fees incurred in court itself, those convicted of DUI will have their license suspended, may get fired from work as a result, need to pay DMV fees and drug and/or alcohol counseling  to reinstate their license, and pay attorney and probation fees. In the end, most people incur thousands of dollars in costs and fees from a single DUI offense. The more offenses on your record, the higher the penalties.

Thus, if you get pulled over and the officer starts investigating you for DUI, think about all of your options for a defense right away. It starts with the moment you get pulled over; not the moment you arrive at your attorney's office. Building that defense can entail refusing to give the officers any incriminating evidence against you, including refusing to take optional field sobriety tests. After all, you have the right to remain silent and anything you say or do can be used in court against you.  Tests such as the walk and turn, one leg stand, horizontal gaze nystagmus test (where you track an object with your eyes), and the preliminary alcohol screening device (PAS) test (field sobriety breath alcohol test), are optional tests.  You are not required by law to take these tests.  In fact, most attorneys recommend not taking these tests, because they can only serve to bolster law enforcement's case against you.  In addition, without these tests, the police may not have enough probable cause or reasonable suspicion to arrest you!!  If that's the case, you could possibly get the prosecution's case dismissed based upon an illegal arrest. 

What is a breathalyzer test?

There are two breathalyzer tests. The first is the preliminary alcohol screening (PAS) test, taken with a handheld instrument. The second can be either a bigger unit administered at the roadside or at the police station or jail.

Officers can carry the handheld breathalyzers in their vehicles, and administer a roadside breath test if they suspect DUI. 

For either test, you blow into the device, which then reads your blood alcohol content. If you are driving with a blood alcohol content of .08% or higher, you are in violation of California's DUI laws. However, you can still be charged if you are below .08%. This depends on whether you were driving a commercial vehicle, driving a passenger vehicle, had a combination of alcohol and drugs in your system, or were simply impaired while driving.

What about testing for drugs?

On the field, officers can test for drugs using a mouth-swab. It tests for the presence of various chemicals in your saliva, including THC, methamphetamine, amphetamine, cocaine, opiates, methadone, and benzodiazepines. If your breathalyzer shows you are below the legal limit for alcohol, officers can still ask you take this drug test. You can also refuse to take this preliminary test. Again, if your placed under arrest for a DUI, and the officer suspects drugs, you are required to take an evidential blood test.  Refusing this test, can also subject you to the penalties of a refusal.

What happens if I refuse to take the breathalyzer test?

The initial preliminary alcohol screening (PAS) test is not a required test and is optional, just like the other physical field sobriety tests.  This test works as part of their field sobriety test investigation. Like the field sobriety tests, they cannot force you to take this optional breathalyzer.  However, if you are placed under arrest, you are required to submit to an evidential test of either your breath or blood (see Vehicle Code section 23612). If you refuse to take an evidential test, you are in jeopardy of losing your license for a longer period of time, at least a year, and perhaps two or three years depending upon your prior record.  In addition, you can suffer increased punishment in the court and during the license suspension time you cannot get a restricted license!!  So if you refuse a breathalyzer test, just make sure, absolutely positive, that you are not refusing the evidential breath test.

Breath v. Blood Test

There is no definite consensus on whether which is better - blood or breath test. Here are some things to consider: 

  • Breath tests come back with errors more often than you would think, because it depends on a variety of factors. These include operational error, machine error, and your physicality (e.g., hypoglycemia, GERD, high-protein diet). 
  • The breath cannot be preserved, so it cannot be retested if there were errors in test administration. 
  • If the breath test was inaccurate, you may be able to craft a defense around it. 
  • A blood sample is presumably more accurate, but can also be examined for several errors.  Some of these include false positives (by examining the machine that was used for the testing), coagulation, inadequate preservative in the blood test, gaps in chain of custody, unsanitary or unprofessional blood draw conditions, etc. This is just to name a few of the errors that can come up.  
  • Taking a blood sample can seem physically invasive.
  • Blood samples can also be retested. 

Questions? If you need to build a defense against a pending DUI or other criminal case, contact us right away.



Category: DUI Decisions

Michael Mitchell

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Michael Mitchell is a Fresno attorney who practices in the areas of DUI, personal injury & criminal law. Visit his Google+ profile.