Driving under the influence is a crime that can impact your life negatively. California has strict laws that prohibit this offense, to try and curb its occurrence. Different laws also govern every aspect of DUI that if you are placed under arrest, you need an experienced DUI defense attorney by your side. The attorney will help you understand which law applies to you and which one is to be followed at a particular stage of your case.

At San Diego DUI Attorney law firm, we help any client in Rancho San Diego facing DUI charges to understand whatever charges they are facing and how they should conduct themselves during the procession of their case. Also, through our strong defense that we build will help them fight their case, and we won’t stop until we ensure they have obtained the best possible outcome. For instance, where we can’t have the case dropped, we will strive to have the charges reduced to lenient penalties. Call us as soon as you get arrested for DUI allegations. This article focuses on breath and blood testing when arrested for DUI.

DUI Blood Tests

People who operate vehicles in Rancho San Diego are considered, under the implied consent law, to have agreed to submit to DUI blood or breath testing if they’re legally put under arrest for DUI. Usually, drivers must be granted permission to choose whether to submit to a blood or breath test. Exceptions to this include when:

  • The arresting officer has a reason to believe that the motorist was intoxicated with drugs (DUID). In this case, blood testing is necessary

  • The motorist is dead or unconscious

  • The driver is transferred to a hospital where a breath testing device isn’t available

  • The driver cannot blow hard enough to do a breath test

A lot of drivers choose breath testing as opposed to blood testing. This is because a breath testing procedure is less invasive and quick. However, not everybody can undergo breath testing. For example, if you have a medical problem like emphysema or asthma, you may be incapable of blowing hard enough. In other cases, a person might be unconscious from drugs or alcohol, or due to an accident.

A few motorists may prefer blood testing. A blood test directly measures the alcohol amount in your bloodstream. On the other hand, breath testing equipment measures the alcohol amount in deep lung air. Then, it mathematically converts the results to a roughly equivalent blood alcohol concentration. The formula used for conversion is called a partition ratio, and it’s fixed by California law. However, in the real sense, every person’s partition ratio differs from one another. Thus, certain drivers consider blood testing to be more accurate than a breath test.

Additionally, with blood testing, part of the blood sample can be preserved for retesting later. This is the key benefit of blood testing instead of breath tests. You can consult with your Rancho San Diego DUI Attorney who will give direction on the best BAC option that suits you.

Title 17 of the Code of Regulations provides the guidelines that govern drunk or drugged driving chemical tests. This Code of Regulations includes the general testing lab requirements and procedures for blood testing. Under this Code, regulations that govern blood testing include:

  • There should be a preservative and an anticoagulant in the blood storage container for prevention of contamination or clotting

  • A specified medical professional or technician should extract the blood as quickly as they can after a supposed offense.

  • Any reusable device might not be kept in or cleaned with alcohol or any other evaporative organic solvents

  • The draw site should be sterilized using something else apart from an alcoholic product. The reason for this is to prevent the addition of external alcohol to the blood sample

  • The sample’s integrity and identity should be maintained all through every step to allow the chain of custody not to be disturbed

If even one or more of these protocols aren’t adhered to, the blood test accuracy could be compromised.

The law presumes that blood testing results were correctly obtained. Therefore, this implies that it is up to your Rancho San Diego DUI Attorney to prove that one or more of the Title 17 regulations weren’t followed. However, even when these regulations are not adhered to, it doesn’t necessarily mean that the blood testing results are invalid. It all relies on whether the test administrator violated your constitutional rights.

Note that the arresting officer cannot draw blood from you for testing against your will. They will only get blood if they have obtained a warrant for that. This is the case even if the officer has reason to suspect you of driving while intoxicated with drugs.

If he/she has a warrant, the officer can physically compel you to undergo blood testing. An officer could obtain a warrant in case he/she has a reason to believe you caused a crash while driving under the influence. In this case, you will be transferred for testing to a medical facility. And if necessary, you’ll be restrained so the laboratory technician can extract your blood. An officer can also obtain the warrant for drawing blood if a motorist is deceased or unconscious.

Blood test laws provide that a portion of your blood be stored for later independent testing. However, the sample can only be retained for a year after its collection. In case the motorist died, the period is lowered to ninety days. The lab technician must then avail the sample to you if you wish to have it retested independently.

For you to be able to fulfill this right, your Rancho San Diego DUI Attorney should file a blood split motion. The motion allows the attorney to have a private lab of your choosing to confidentially and independently analyze the blood. An independent laboratory may deduce that the blood sample:

  • Had been contaminated or it had fermented

  • Showed a blood alcohol concentration of lower than 0.08%

  • Was improperly handled or refrigerated

  • Was affected in a manner that may cast doubt on the police laboratory’s conclusions

An experienced DUI defense lawyer would know these key strategies and use them to challenge the results of your blood test:

  • Bring a motion seeking to strike off the results of the test from evidence

  • Aggressively attack the officer’s conclusions so the court can grant you a not guilty ruling or a plea bargain at trial.

The attorney can apply one or all of the above strategies together with other drunk-driving defenses like lack of reasonable cause for a drunk or drugged driving traffic stop and rising blood alcohol. And if your blood was drawn forcefully, your attorney ought to be more vigilant. An unexpected or rushed blood draw is likely to involve incorrect protocol, and these are errors that could eventually vindicate you if you are wrongfully accused.

DUI Breath Tests

Law enforcement uses two breath testing types in driving under the influence cases. The tests are performed during two steps, as stated below:

  • A roadside PAS (preliminary alcohol screening) test, administered at a traffic stop for DUI & investigation

  • Post-arrest breath tests given at a police station on desktop equipment or otherwise at a sobriety checkpoint at a movable police unit.

A PAS Test

PAS tests are administered during a driving under the influence investigation. An officer administers it after you have been pulled over at a drunk-driving checkpoint before you have been arrested. Generally, this test is performed using a breathalyzer. In most cases, motorists aren’t obligated to undergo this test and can willingly refuse to submit to it. However, there are exceptions to drivers that are:

  • At that moment on a drunk-driving probation

  • Below twenty-one years old who are being investigated for underage drunk-driving or for violating the zero-tolerance laws for underage motorists

If you’re on probation for DUI or are underage, refusing to undergo PAS testing is an offense that may cause a mandatory license suspension, notwithstanding whether you’re ultimately found guilty of DUI. PAS tests are categorized as field sobriety tests. They merely assist arresting officers in deciding whether or to make a DUI arrest or not. There are no consequences for not submitting to PAS tests if you’re twenty-one years old and above and aren’t on drunk-driving probation.

Post-Arrest Breath Tests

Chemical testing is compulsory for all those that have been legally placed under arrest due to DUI. As a driver, you must submit to post-arrest chemical testing even when you have already undergone a PAS testing. As we mentioned before, a driver is allowed the option to do a blood/breath test, with exceptions being the instances we provided under DUI blood testing. Otherwise, under normal circumstances, refusing to undergo post-arrest chemical testing has consequences, including:

  • Suspension of your license for a minimum of one year

  • A 48-hour mandatory jail time enhancement if you are ultimately found guilty of DUI

However, you may decline to undergo breath testing if you have opted for blood testing. If you are convicted of declining to undergo chemical testing, the judge may allow you to operate your vehicle without any restrictions if you have an IID installed.

How Title 17 Code of Regulations Apply to Breath Testing

As it is with DUI blood tests, laboratories and law enforcement have to follow title 17 procedures when collecting and processing breath samples. In case the procedures aren’t followed, blood alcohol concentration measurements might be compromised. And as it is with blood testing, your Rancho San Diego DUI Attorney can take advantage of the mistakes to help you in fighting DUI charges. He/she could bring the motion to eliminate the results of the breath test from the evidence. If the judge approves it, the results will become inadmissible. Thus, there won’t be proof of your BAC level. This will usually lead to dismissal of your charges or a reduced charge.

Title 17 code of regulations sets forth multiple rules for DUI chemical tests as regards breath tests. The most essential ones include:

  • The equipment used for breath testing has to be maintained and kept in a good working state

  • The device has to be marked after every ten days or a hundred and fifty uses, whichever is first

  • The test administrator must observe you continuously for fifteen minutes before the test is administered. During this time, you mustn’t:

  • Drink/eat/place any substance in your mouth

  • Smoke

  • Vomit, regurgitate, or burp. It could bring the alcohol from your stomach to the mouth

  • The test administrator should have undergone training on how to use the testing device

  • The administrator should draw two breath samples that are not different from the other by over 0.02g per 100ml of blood alcohol

  • The test operator should draw air deep from your lungs

  • The lab carrying out the analysis should keep a comprehensive record of personnel, test results, and device calibration

Violations of these regulations that could cause falsely increased BAC readings are classified into three. That is:

  • Operator error

  • A device that was incorrectly calibrated or wasn’t tested

  • Failing to maintain documentation as the law requires

Your lawyer should strive to obtain lab & police records and scrutinize them to dig out these kinds of mistakes. He/she can also inspect the records to know whether the test administrator:

  • Inspected to ensure your mouth did not have anything

  • Observed you continuously for fifteen minutes before giving you the test

  • Noted the time when that fifteen minutes period kicked off

  • Correctly placed the mouthpiece to the machine

  • Noted the time when you made each blow

Medical Conditions Can Also Lead to False Readings

Specific diets and medical conditions can trigger a breathalyzer to record falsely elevated BAC readings. These conditions include:

  • Low carb or high protein diet

  • GERD (gastrointestinal reflux disease)

  • Diabetes

It’s critical that if you are arrested for DUI, you should disclose all your dietary issues and medical conditions to your Rancho San Diego DUI attorney, even if they don’t seem relevant. Your lawyer would know whether to use your situation as a legal defense. It could be the means to keep you from a wrongful conviction based on incorrect breath test BAC results.

Other Factors that Can Cause Falsely Elevated Readings

Breath testing devices have become highly sophisticated. Despite this fact, there are still various factors that may, under particular circumstances, give falsely high results when a breath test is performed. They include:

  1. Inhaled Chemicals Like Acetone

Even though it’s rare, BAC could sometimes falsely increase in persons who work nearby volatile chemicals like acetone that’s present in the paint. When these chemicals get inhaled, they could be detected by breathalyzers as alcohol.

  1. Rising Levels of Blood Alcohol

After alcohol consumption, the levels of alcohol will continue rising for thirty or forty-five minutes. In particular cases, it could take even longer (up to two hours) for the alcohol to get completely absorbed in your bloodstream. A drunk-driving arrest and investigation can take place within this time-frame. This implies that by the time you undergo breath testing, the level of blood alcohol may be higher compared to when you were behind the wheel.

An expert eyewitness on DUI can back out your BAC, which could indicate that your arrest took place when your blood alcohol content was still rising.

  1. Residual Mouth Alcohol

After you consume alcohol, a certain amount of it remains in the mouth, which we call residual mouth alcohol. Breath testing requires one to blow very hard into the device so they can generate deep lung air for the sample. BUT, as your breath goes out through your mouth, it will pick up the residual mouth alcohol. This alcohol stays in your mouth for roughly between fifteen and twenty minutes. Thus, even if a little amount of the mouth alcohol appears, it’ll be collected then deposited into your breath sample.

Residual mouth alcohol can be caused by:

  • A recently drank alcoholic drink, even if it’s not sufficient to make one legally drunk

  • Breath sprays and mouthwashes that contain alcohol

Mostly, mouth alcohol vanishes after fifteen to twenty minutes. Thus, Title 17 requires a fifteen-minute waiting time-frame with constant observation before conducting breath tests. Should the test be carried out sooner or if you take any alcoholic drink during this waiting time-frame, it could create falsely elevated BAC readings.

Find an Experienced Rancho San Diego DUI Attorney Near Me

Breath and blood testing are among the significant aspects of a DUI arrest and investigation case. Therefore, you must know your rights when these tests are being administered to you, which could help prevent the severe consequences that come with a DUI conviction. For a layman, it can be challenging to understand these laws. That is why the moment you get arrested, you need an experienced DUI defense attorney by your side to help you out, so you don’t violate these laws. If you are in Rancho San Diego, lawyers from the San Diego DUI Attorney law firm will help you every step of your DUI case, and advise you on what test to take and when it’s appropriate to take it. We will also scrutinize the BAC test results and find the loopholes that can help your case. Call us at 619-535-7150 if you are facing charges, and let us handle it for you.