San Diego BAC Testing

When police pull you over in California on suspicions of drunk driving, they will administer several field sobriety tests (FSTs), including a breathalyzer test, to establish your degree of intoxication. If the officer discovers you are driving under the influence or beyond the designated blood alcohol content (BAC) levels, you will be apprehended and taken to the nearest police station. The police do not require your consent to a breath test, but at the station, they will require your consent to draw a sample of your blood for chemical testing.

Blood alcohol tests are the most commonly used tests to determine BAC levels because of their high accuracy, and their results are presented as evidence in court. However, these tests are still prone to errors, which is why they must be conducted as per Title 17 regulations. Otherwise, they will be considered invalid. At the Law Offices of Anna R. Yum, we understand that several factors can make blood tests inaccurate. Therefore, if you took the tests after a DUI arrest in the County of San Diego, we can help you contest the charges.

Understanding California’s Implied Consent Statutes

Many Californians find themselves on the wrong side of the law for drinking and driving, resulting in arrests and charges based on chemical tests. The misconception that many motorists have is that when they turn down these tests, they can avoid arrests. Nevertheless, due to implied consent statutes, failure to submit to chemical testing has severe consequences. You are entitled to refuse to take chemical tests, but you must understand that the refusal could lead to additional court fines, driving privilege suspensions, and enhanced DUI penalties. Therefore, before you refuse to take the tests, talk to an experienced DUI lawyer who understands implied consent.

Under the implied consent statutes, any motorist operating a vehicle is deemed to have consented to take blood or breath alcohol tests after a lawful arrest for drunk or drugged driving. The unspoken consent that follows the arrest is implied consent. The law applies to every motorist, including out-of-state drivers operating their vehicles in California.

When the state first issues you a driver’s license, you must acknowledge that you understand and are ready to comply with the implied consent statute. It means that when you obtain a permit to operate a car, you automatically enter into a civil agreement with the state agreeing to submit blood or breath samples for chemical testing, and you will relinquish your constitutional right against unreasonable search and seizure. In return for agreeing to take chemical tests, the state grants you a permit to drive your car. So, any time you turn down the tests, you breach the civil contract with the state, a violation of implied consent.

Many drivers do not remember entering into a contract with the state. The few who remember the contract do not know its conditions. Besides, many drivers apprehended for DUI are out-of-state and unaware of implied consent and the penalties for violating it. However, ignorance of the statute cannot be a defense for refusal to take a chemical test.

With many people unaware of implied consent and the consequences of violating it, the stopping officer usually advises you on the provisions of the statute. The officer also advises you on the penalties for contravening the law. So, refusal to take chemical tests can only be used against you if you act intentionally and knowingly. Knowingly means that you understood you were refusing to take the tests or the consequences of refusal. On the other hand, intentional means you had a physical and mental understanding of what the police were saying but objectively turned down the tests.

You must understand that when it comes to implied consent, even the Miranda rule cannot protect you because you have already waived the right to legal representation before deciding on the chemical tests. Therefore, if the DUI arrest is valid, you must take a chemical test before contacting your attorney.

Chemical tests are intended to measure the ratio, or weight, of alcohol in your bloodstream. DUI statutes prohibit operating a car with a BAC of 0.08% or more. So, if the test results indicate a higher BAC, you will face arrest and a possible conviction. Also, when you decline the tests, implied consent takes effect, resulting in DUI charges regardless of the BAC.

Typically, after arrest, the police allow you to pick between breath and blood alcohol tests. Nevertheless, you will provide a urine sample for testing if you cannot submit either of the two tests. Breath and blood tests are impossible when you have hemophilia or heart conditions. Other exceptions for taking blood or breath alcohol tests are:

• You are dead or unconscious.
• You have been taken to a facility where breathalyzer equipment is unavailable.
• The officer handling your case is convinced drugs and not alcohol intoxicate you. Therefore, they will administer a blood test.

Blood vs Breath Alcohol Tests

The majority of DUI suspects opt for breath tests, as they are quick to administer and less invasive than blood alcohol tests. Nevertheless, not everyone is a candidate for these tests. Suspects with asthma cannot strongly blow into the breath test equipment. Others could be unconscious or deceased because of the alcohol or drugs, making it impossible to blow on the breath testing equipment.

Other drivers elect to undergo blood alcohol tests, which give a direct measure of the alcohol concentration in their bloodstream. Breathalyzers test the alcohol mass in deep lung air and use partition ratios to approximate BAC.

Every individual has a varying partition ratio, making breathalyzer tests unreliable because of their low accuracy. Therefore, when offered an option between breath and blood tests, you should go for the blood alcohol test because of its high accuracy. Besides, if additional tests are required, you do not have to submit another sample for testing, as some portions are safely split and stored for future retesting.

When choosing between breath or blood tests, there is no straightforward answer because each test has advantages and disadvantages. The action you should take after an arrest is to remain calm and cooperate with the arresting officer. However, this should not mean that you disclose all the details of the incident because you could end up sharing incriminating information. Talk less with the officers until your DUI attorney is present.

Even if the BAC results show intoxication, it does not mean you will automatically be convicted because there are other aspects of the offense the prosecutor must demonstrate beyond moral certainty to obtain a guilty verdict.

Usually, some individuals apprehended for drunk driving elect breath tests because they are simple, less invasive, and the results are instant. Conversely, blood alcohol tests are highly reliable and accurate, and the police cannot use the results to falsely accuse you of DUI as there is a sample stored for retesting.

Blood Alcohol Tests and Title 17 Regulations

Procedures that guide blood tests are provided under Title 17. The regulations provided under this include:

• A licensed technician or medical expert must draw the blood sample instantly after the suspected offense.
• The technician should sterilize the draw area with a product other than alcohol to prevent the external alcohol content from being added to the sample, resulting in a false high.
• The vial must contain an anticoagulant or preservative to prevent contamination or clotting of the sample.
• Any reusable equipment for drawing or storing the blood sample should not be sterilized using alcohol or any other volatile organic solvent.
• The identity and integrity of the sample must not be compromised through every phase of the testing, and the chain of custody must remain the same.

When any of these protocols are not adhered to during blood test administration, the accuracy of the results is compromised, which can help you contest the DUI charges.

Validity of California Blood Alcohol Tests

California DUI statutes assume blood test results are accurate if only they were conducted per the guidelines provided under Title 17. Therefore, as a defense, you will have a strong case against the prosecutor if the protocols provided in the Code are not followed. If the right procedures were not followed, it means the blood sample was obtained illegally, and the results are inadmissible as evidence in court. What is even more important to the case is that law enforcement violated your rights during the stages of obtaining DUI evidence.

Warrantless Draws

Even though, by being a license holder, you have implied consent to chemical testing, the police cannot draw a blood sample for testing by force without a warrant, even if they reasonably believe drugs intoxicate you. The only time the police can conduct a chemical test without a warrant is when performing a breath test after arrest.

The US Supreme Court prohibited warrantless blood draws in Birchfield vs. North Dakota. The court opined that warrantless draws after arrest are only lawful under the Fourth Amendment during breath testing, but they are unlawful in instances involving blood alcohol tests. However, the court’s holding only applies in cases where you decline to take a blood test after a DUI arrest.

You should understand that refusing to submit to blood tests is not a crime. The only repercussions of the decision are that it results in penalty enhancement after a drinking and driving conviction and mandatory withdrawal of driving privilege by DMV, regardless of the court’s verdict on the DUI counts.

After the Supreme Court’s decision in the Birchfield case, it remains to be seen if the courts will declare the penalties for refusal to submit a blood sample for testing after DUI arrest illegal because taking a breathalyzer test without a warrant remains legal.

Forced Blood Alcohol Tests

The only time the police should force you to take a blood test is if they have a valid warrant from the court. The arresting officer requests a warrant if you cause an accident and they reasonably suspect that the crash was due to drunk or drugged driving. Other times, you could be deceased or unconscious, forcing the officers to obtain a warrant to draw your blood for testing. Again, when there is a reasonable belief that you are driving while intoxicated by drugs, but you decline to take a blood test, the officer can request a warrant to force you to take the test.

When you find yourself in these situations, the officer handling your case will drive you to a local hospital or health facility for blood tests. If you resist, the law mandates that the officer restrain you from allowing the medical expert or licensed lab technician to draw the blood sample.

Independent Lab Tests

Blood alcohol testing statutes in the state require that a sample of the drawn blood be safely saved or stored for future retesting or analysis by an independent lab. This is the primary benefit of blood tests over breathalyzer tests. With breathalyzer tests, the results are immediate. Still, no sample is saved for independent analysis, making it easy for the police to wrongfully charge and convict you of DUI, as no sample is saved for future analysis in case you contest the accuracy of the result or want to prove to the court that you are falsely accused of the said offense.

The procedures provided under Title 17 state that law enforcement must safely save a sample of the drawn blood for twelve months and, if the motorist is deceased, for ninety days. Therefore, should you require an independent lab test, you can request the saved sample and take it for retesting.

However, obtaining the saved sample for retesting is challenging because you must file a blood split motion. “Blood split” means dividing the blood sample into two so that the authorities can use one for testing and the other is saved for the future in the event the defendant needs to perform a retest.

The motion begins when your defense attorney makes an informal request to the district attorney for a portion of the sample. Typically, the prosecutor does not object to the request. However, when the DA turns down the request or fails to hand over the sample within fifteen days, the court can issue an injunction requiring them to do so.

Failure by the prosecutor to turn over the blood split can result in consequences like:

• Contempt hearing.
• Notifying the jury of the hold-up.
• Barring the prosecutor from using the blood test results as evidence in the trial.

After you obtain the split for testing, you take it to a private or independent lab for analysis. The results from the independent tests can indicate that:

• Your BAC was within the designated limit.
• The blood sample was fermented or contaminated.
• The handling of the sample during refrigeration was compromised.
• The blood sample was affected to the point that the court could not rely on the test results provided by the police in the case.

When fighting DUI charges, blood-split motions can be pivotal to obtaining a favorable outcome. The results from the independent analysis can help you cast doubt on the accuracy of the blood alcohol test results presented by the prosecutor.

The law presumes chemical test results are accurate. So, your defense attorney can prove that the results provided by the prosecutor were falsely high.

Use of Blood Test Results In Court

Per Vehicle Code (VC) 23152(a), the court will find you guilty of a DUI offense if it is proven that your BAC was above the designated limit during your arrest. The prosecutor uses the results from the blood tests to prove to the court that your blood alcohol level was above 0.08% and strengthen the case.

If you are a commercial driver, the prosecutor relies on the blood test results to show that the alcohol levels in your bloodstream were above the designated limit of 0.04%. For defendants younger than 21, the DA will present chemical test results above 0.01% to secure a guilty verdict.

Blood test results are critical in proving to the judge that you were drinking and driving. The penalties upon conviction for a DUI are life-altering and vary based on your case’s circumstances.

Blood test results will also be used in the Department of Motor Vehicles (DMV) hearing to decide on the license suspension.

Contesting Blood Test Results

At the Law Offices of Anna R. Yum, we employ three primary strategies to contest blood alcohol test results. First, our attorneys file a petition in court to exclude blood test results from the evidence against you. Also, we aggressively poke holes in the prosecutor’s arguments to obtain a plea deal or win the case.

Additionally, we use arguments like rising blood alcohol, a lack of probable cause, and mistakes in obtaining the sample for testing for a favorable outcome.

Rising blood Alcohol

When contesting DUI counts, you can use rising blood alcohol as a defense to challenge the results from the blood test. After consuming alcohol, your blood alcohol weight rises rapidly for thirty to forty-five minutes before it reaches its peak. The rising duration varies based on your body chemistry and other factors. It can even take up to three hours before the alcohol reaches its maximum level.

Therefore, when police pull you over after consuming alcohol, and your blood alcohol is still on the rise, a blood test at the time can indicate a falsely high BAC, resulting in an arrest. Your defense attorney can, therefore, argue that when the blood sample was drawn, the alcohol levels in your bloodstream were still on the rise, hence the reason for the inaccurate BAC results.

Retrograde Extrapolation

The police and the law use retrograde extrapolation to determine your BAC during the traffic stop. The technique is a mathematical estimation of your BAC after the traffic stops using the current levels. The calculations are done if the police believe your BAC was higher when you were driving or in the absorptive phase than what appears on the test results.

The absorptive stage is the time when the body is absorbing alcohol in the blood. When you consume alcohol, 20% is absorbed in the stomach and the other 80% in the small intestines. Also, a fraction of the alcohol is excreted through breath, urine, and sweat.

After alcohol leaves the digestive system, it enters the bloodstream and is carried to the brain. Alcohol metabolism, or breakdown, happens in the liver and is excreted as urine.

It takes approximately an hour for 90% of the alcohol to be absorbed in the blood. The absorption rate and elimination rate vary from one party to another depending on several factors, including:

• The drink type.
• Fatigue.
• Illness.
• Drug interaction.
• The gender of the drinker.
• The speed at which the alcohol was consumed.
• The contents of the stomach at the time of consuming alcohol.
• Functional tolerance of the drinker to alcohol.
• The drinker’s weight, height, and body fat.

With every drinker’s metabolism being different, retrograde extrapolation is not always accurate, making it easy for you to challenge the supposition. Chemical test results must be correct for the state to use them as evidence. If you believe errors exist in the testing, you can challenge the results and prevent the harsh DUI penalties.

Reasons for the False Results when Your Blood Alcohol is on the Rise

A blood test is not always administered immediately after a traffic stop. Normally, the tests happen after the stopping officer conducts field investigations and arrests you on suspicion of drinking and driving. It takes up to three hours for the alcohol to reach its peak. Therefore, your BAC could still be rising when the blood test is performed, meaning the results could read a false high. If your attorney can prove the BAC was still growing, the court can drop the case or reduce the charges to wet reckless.

Besides, you can obtain a favorable outcome by showing that the equipment used for the testing was not calibrated as frequently as required; hence, the results from the tests should be excluded as evidence in the case.

Find an Experienced Criminal Defense Attorney Near Me

When an arrest for driving while intoxicated results in a blood alcohol test, you should speak with a competent DUI attorney immediately. At the Law Offices of Anna R. Yum, we can help you defend against the charges by contesting the accuracy of the blood test results. Call us at 619-493-3461 to discuss your case in San Diego County.