Blood alcohol concentration is the cornerstone of the prosecutor’s case in a DUI criminal charge. Driving with a BAC greater than 0.08% in California is a crime. Commercial drivers should not operate a vehicle with a BAC exceeding 0.04%, while underage drivers should not drive with any measurable alcohol amount in the bloodstream. When police stop you on suspicion of drunk driving, they can request you take a chemical test to determine your BAC. Per implied consent law, a chemical test refusal can result in license suspension and enhanced penalties for the primary crime. You can challenge your BAC test results on numerous grounds, including violating your legal rights and incorrect testing procedures. The San Diego DUI Attorney can review your case facts and develop a compelling defense strategy.
Defining Blood Alcohol Concentration (BAC)
Also known as blood alcohol level or blood alcohol content, BAC is the measure of the quantity of alcohol in the bloodstream. It is a percentage representing alcoholic grams in every 100 milliliters of blood. A higher percentage means you have more alcohol in the system.
BAC is deemed an objective measure to decide whether the driver can operate the vehicle, but it is not all that objective. Nevertheless, some motorists are only drunk when their blood alcohol level is at least 0.10%.
Vehicle Code Section 23152(b) VC considers you under the influence if your blood alcohol level is at least 0.08%. It is illegal for commercial drivers to drive with a BAC of 0.04%. Moreover, you should not operate a vehicle with a BAC of 0.01% or higher if you are below 21, according to the zero-tolerance law.
If a police officer perceives that a driver is too drunk to drive safely, they will observe the motorist to ascertain whether they are displaying conduct that indicates intoxication. These behaviors include the following:
- Driving erratically
- Operating the car too slowing
- Swerving
- Failing to signal at turns
- Turning too fast
- Driving in the opposite lane
When the police officer stops you, they can request you to leave your car and administer field sobriety tests (FSTs). You don’t need to agree to the FSTs since the police can use them as proof against you.
Law enforcers measure BAC using either blood, breath, or urine tests.
DUI Breath Test
DUI breath tests measure the amount of alcohol in deep lung (alveolar) air. An alveolar is a balloon-like sac found deep in the lungs and surrounded by capillaries. Capillaries allow carbon dioxide and other wastes like alcohol to pass from the blood into the alveoli. That is why the law requires breath test samples to be alveolar in composition.
Alveolar air is the last to leave the lungs and where alcohol concentration is the highest. Consequently, you should blow hard to acquire a correct reading while taking the chemical test.
Unlike a blood test, a breath test does not directly indicate BAC percentage. The breathalyzer measures the quantity of alcohol in your lungs and converts it to an equivalent blood alcohol content. The conversion factor is the partition ratio (the link between the alcohol measured in your breath and the alcohol found in your blood). In California, the legal partition ratio is 2100:1. In simpler terms, the quantity of alcohol in 210 liters of breath is the same as the quantity of alcohol content in a milliliter of blood.
Police administer two types of breath tests in drunk-driving cases, including the following:
- Preliminary alcohol screening (PAS) test
- A post-arrest evidentiary breath test
Preliminary Alcohol Screening Test
A police officer will give you a PAS after pulling you over or stopping you at a DUI checkpoint before making an arrest. They administer it using a handheld gadget like a breathalyzer.
Refusing to take a PAS test carries no penalties unless a person is on drunk driving probation or below 21. However, refusal may be used as evidence in court under certain circumstances. Suppose you are on drunk driving probation or below 21. In that case, a refusal to take the test is deemed a chemical test refusal that attracts a compulsory suspension of your driver’s license, irrespective of whether you are found guilty of DUI.
Post-Arrest Breath Test
Under the implied consent law, whenever a person drives in California, they are considered to have consented to chemical testing if arrested for a DUI. In simpler terms, every motorist must submit to chemical testing, provided police arrest them legally. You should take the post-arrest chemical test even after taking the PAS test.
You have an option between a blood or breath test unless any of the following apply:
- The police officer believes you are driving under the influence of drugs
- You have been taken to a healthcare facility due to the need for medical attention, and the facility does not have breath testing gadgets.
- You have died or are unconscious.
- You cannot blow into the breath test
Title 17 Regulations and Breath Tests
Title 17 of the California Code of Regulation outlines the procedures that govern chemical testing. Breath test protocols are as follows:
- The breathalyzer should be functional
- The breath test gadget should be calibrated after every 150 uses or 10 days, whichever takes place first.
- The officer administering the test should be trained on the device used
- The police officer should observe you for more than 15 minutes, and during this duration, you must not eat, drink, burp, vomit, smoke, or regurgitate.
- The police officer should collect your breath test from the alveoli.
- The lab performing that assessment should keep comprehensive records of test results, personnel, and equipment calibration.
Breath Test Benefits
Many drivers arrested for drunk driving choose to take a breath test. The main benefits of this chemical test are as follows:
- Its results are instant
- It is minimally invasive hence less stressful for many drivers
DUI Blood Test
A blood test directly measures the quantity of alcohol content in your system.
The benefits of agreeing to take a blood test include the following:
- Part of your blood sample can be saved and independently tested by a laboratory of your choice, allowing you to challenge the prosecution team’s evidence. You cannot preserve breath samples.
- It permits a more accurate BAC assessment than a breath test. It is beneficial when you are too close to the lawful BAC limit.
Title 17 Regulations and Blood Tests
Regulations that apply to blood tests are as follows:
- A medic or a specified technician should draw a blood sample immediately following the alleged DUI
- The draw site should be sterilized with anything else apart from alcohol-based products to avoid adding external alcohol to your sample.
- A preservative and an anticoagulant should be present in the vial to prevent clotting or contamination.
- Reusable tools should not be stored or cleaned using alcohol or volatile organic solvents.
- The integrity and identity of your sample should be maintained throughout the process so that the chain of custody is undisturbed and recorded.
If the police fail to comply with these protocols, the blood test’s accuracy might be compromised.
The law presumes blood-alcohol results were accurately acquired, burdening you to prove the police did not adhere to Title 17 regulations. Even when police fail to abide by Title 17 rules, a blood draw is not necessarily invalid. It depends primarily on whether they violated your constitutional rights.
Blood Split
Blood split implies dividing DUI blood samples into two. Police officers use one portion to test BAC, while the other portion is preserved should you want to have the blood retested independently.
Since the law presumes chemical test results obtained by police to be accurate, and the burden is on you to prove they are not, blood-split motions can assist you in beating DUI criminal charges by casting doubt on the accuracy of these results.
“Per Se” Drunk Driving Cases
The “per se” drunk driving law makes it illegal to operate a vehicle with a BAC greater than 0.08 percent. Consequently, a blood split test that shows a BAC below 0.08% might create reasonable doubt.
California “per se” DUI laws are as follows:
- Driving with a BAC greater than 0.08% (VC 23152(b))
- Underage DUI (VC 23140)
- Commercial vehicle DUI (VC 23152(d))
- Zero tolerance for motorists below 21 (VC 23136)
Blood Split Motion
The blood split motion starts with your attorney informally asking the prosecution team for a portion of the blood sample. The prosecution should agree to the request. If the prosecutor fails or refuses to submit your blood split within fifteen days, the judge can order them to do so. Additionally, the judge can impose any of the following discipline on the prosecutor:
- Contempt proceeding against the prosecutor
- Preventing the prosecution from using BAC results at trial
- Informing the jury of the delay
There are no criminal penalties for acquiring your blood split and not having it tested. Nevertheless, the prosecution can introduce your original results at trial regardless of whether you retested the sample.
Can a Blood Split Adversely Affect Your Defense?
It cannot.
A blood split indeed can indicate results that will not assist you. For example, independent testing can confirm the original test’s accuracy or even indicate a greater BAC than the law enforcer reported.
Luckily, the new BAC results acquired from your blood split are your evidence, and revealing it to the prosecutor is not mandatory.
Chemical Test Refusal
The concept of chemical test refusal is not as straightforward as it seems. Below are different types of refusals:
- You only have one opportunity to undergo the test – If you refuse to submit to chemical testing from the onset, you cannot decide otherwise.
- Failing to choose a drunk driving chemical test is deemed a refusal — If the police offer you an option to select and you fail to respond, the police consider the silence a refusal.
- You are entitled to legal representation before taking the chemical test — While you are entitled to consult a lawyer after your arrest, this entitlement is not applicable to chemical testing after a drunk driving arrest.
- You have no legal right to request your doctor conduct the chemical testing procedure or for them to observe as it is being done.
Refusing to take a chemical test after a legal DUI arrest leads to sentencing enhancements and withdrawal of driving privileges.
Criminal Penalties for Chemical Test Refusal
If the case proceeds to trial and you are found guilty of DUI, you will face enhanced legal penalties. These penalties are consecutive to and in addition to your sentence for the primary DUI.
These enhanced penalties include the following:
- An additional forty-eight hours in jail for a first-time DUI in ten years
- A second-time DUI crime with a lookback period attracts 96 more hours in jail
- A third-time DUI crime with a lookback period attracts 10 more days in jail
- A subsequent DUI crime with a lookback period attracts 18 more days in jail
Driver’s License Suspension
If you decline a chemical test, the Department of Motor Vehicles will suspend your driver’s license.
You have ten days after the legal arrest to request an administrative DMV hearing to fight the suspension. Making the request postpones the suspension, pending your hearing outcome.
The DMV will not withdraw your driving privileges if you win at the hearing. On the contrary, losing the hearing attracts the punishment below:
- One year of driver’s license suspension if you are facing a first DUI crime within the lookback period
- A two-year driver’s license revocation for a second DUI crime within the lookback period
- A three-year driver’s license revocation for a third DUI crime within the lookback period
The DMV decision is independent of what occurs with your DUI case.
Did You Know that Chemical Test Refusal Could Positively Affect Your DUI Case?
While refusal of chemical test results carries enhanced penalties for your underlying DUI crime, it can positively impact your DUI case.
Without chemical testing results, the district attorney can either:
- Feel the police officer is not articulate enough to persuade the jury of your guilt
- Believe the officer is not credible
In this case, the court can dismiss or reduce the charges to reckless driving.
Can Law Enforcers Force You to Undergo a Chemical Test?
With few exceptions, law enforcement agents cannot draw blood against your will unless they have a warrant. It holds even when the officers reasonably suspect you of drug use. The 4th Amendment to the U.S. Constitution allows warrantless breath tests following a DUI arrest but not warrantless blood tests.
Previously, law enforcers could perform an involuntary blood draw without obtaining a warrant based on the rationale that there might be less time to acquire a warrant because a motorist’s BAC can quickly dissipate. Nevertheless, the U.S. Supreme Court discouraged warrantless blood draws. Judges are available 24/7 and can sign warrants electronically or via fax. To acquire the warrant, the officer only submits a pre-prepared form to the judge and checks the appropriate boxes. Next, the judge will sign the warrant remotely and return it to the police officer.
With a warrant, a police officer can physically force you to take the blood test. In this case, the arresting officers will take you to a local medical facility.
Moreover, the officer might obtain a warrant for a forced draw if you are unconscious. A warrant is also essential if the motorist is dead.
The United States Supreme Court recently upheld that individuals have a strong opinion that the police piercing their skin is an infringement of their privacy. The fact that alcohol in the blood dissipates does not justify a forced blood draw without acquiring a warrant first. Consequently, police in California have stopped forced blood draws for misdemeanor cases. They can only draw your blood against your will if they suspect you of a felony, like driving under the influence, and cannot obtain a warrant quickly.
Urine Test
Law enforcers consider urine tests the least reliable method to measure BAC; hence, they rarely use it. Title 17 of the Regulations has protocols that police should collect, analyze, and store a urine sample, including the following:
- You must first void your bladder
- The police should collect the urine sample at least 20 minutes after your arrest
While the police should give you adequate privacy, they should ensure the sample does not originate from another source or is doctored.
Criminal Penalties
Penalties for DUI include the following:
Violation of VC 23152(b)
VC 23152(b) makes driving with a BAC greater than 0.08% a crime.
A first DUI conviction is a misdemeanor, punishable by the following:
- A jail term of up to 6 months
- Three years of summary probation
- Fines ranging between $390 to $1,000
- Mandatory ignition interlock device (IID) installation for 6 months
- Six-month license driver’s license suspension
- A 3-month DUI program if your BAC was 0.20% or more
A second-time misdemeanor DUI conviction within ten years can attract the following:
- Spending up to one year in county jail
- Fines not exceeding $1,000, including substantial assessments
- Enrolling in an 18- to 30-month DUI school program
- A two-year driver’s license suspension (Although you can enjoy driving privileges after installing an IID installation for one year)
DUI with a Commercial Driver’s License
VC 23152(d) is the commercial DUI law that prohibits driving a commercial car with a BAC greater than 0.04%. The punishment for a conviction for a commercial DUI depends on your past DUI history and if the DUI resulted in an injury.
Penalties for a first-time DUI conviction if there was no injury can include the following:
- Six months in county jail
- A fine of $1,000
- Three to 5 years of misdemeanor probation
- Attending DUI school for three months
- Suspension of your driver’s license for 12 months or longer
A subsequent commercial DUI conviction could result in a commercial driver’s license ban for life.
The penalties for a first-time commercial DUI increase further if an injury occurs. Based on the circumstances, a DUI with an injury can be prosecuted as a misdemeanor or felony. A misdemeanor attracts summary probation for five years, a year in jail, and $5,000 in fines, while a felony is punishable by the following penalties:
- Serving time in state prison
- 30 months of DUI school
- Being designated as a Habitual Traffic Offender for three years
- Driver’s license revocation for five years
Zero Tolerance Law
Violating California’s zero-tolerance law is a civil offense. The only consequence is an automatic driver’s license suspension of 12 months.
However, if your BAC is 0.08% or more, you will face standard DUI criminal charges.
DUI Legal Defenses in California
Possible defenses include the following:
The Arresting Officer Failed to Conduct a 15-minute Observation
If the police pull you over for a suspected DUI, they should take 15 minutes to observe you before a DUI breath test. Nevertheless, most officers instead start the paperwork and set up the breath test machine without conducting an observation.
Demonstrating that the arresting officer failed to conduct the observation correctly calls into question the whole DUI investigation, including the chemical tests.
Mouth Alcohol Increased Your BAC Result
Before administering a DUI breath test, an arresting officer should continuously take 15 minutes to observe you. The observation is to ensure that during this period, you do not place something containing alcohol into your mouth, including the following:
- Medicines like cough syrup or homeopathic medicines
- Beverages
- Mouthwash or mouth spray
The arresting officer should also ensure you do not burp, belch, or regurgitate during the 15-minute observation. Any of these things may bring alcohol from your stomach into your mouth, causing the phenomenon referred to as residual mouth alcohol.
The Chemical Testing Equipment was Compromised
Title 17 of the Code of Regulations outlines how law enforcers should conduct chemical tests. The court can exclude BAC results from evidence if the police did not comply with the Title 17 protocol for:
- Operation
- Certification
- Maintenance
- Storage (including, the right chain of command)
- Collection
Therefore, even if your BAC was more significant than 0.08%, the prosecution could reduce or even dismiss your charges if you can prove the police mishandled the evidentiary tests of your sample(s).
Find Skilled Legal Representation Near Me
Your BAC test results can considerably affect your DUI criminal charges. A reading of at least 0.08% can result in a criminal charge; a high BAC level is enough to convict you, irrespective of your impairment level. Challenging your BAC proof is complicated and requires a comprehensive understanding of your case facts, science, and the law. The San Diego DUI Attorney’s seasoned legal team can explore all defense strategies to challenge the evidence. We can analyze your case facts, the accuracy of the tests the police used to measure the BAC, and the potential violations of your rights. We are devoted to minimizing the impact of the DUI charge on your life and protecting your rights and future. Please call us at 619-535-7150 to schedule your no-obligation initial consultation and get answers to your questions.
