Driving under the influence of alcohol and drugs is a crime that is punishable by a misdemeanor in most states. However, if the incident involved the death of a bystander, you may be charged with a felony. Driving under the influence can result in fines, jail time, and other penalties that will keep you off the road. Driving under the influence can hold heavy repercussions which is why you have the right to defend yourself against the evidence provided by the police.
If you are operating a vehicle under the influence of alcohol or drugs you will be required to submit to a breath and blood test if the police officer establishes probable cause. An officer has probable cause when the breathalyzer reading is too high or if you refuse to take a breathalyzer test at the time you were stopped. You have the right to refuse a breath test, but upon arrest, you will be obligated to submit to a blood alcohol test. A blood alcohol test is mandatory and refusing to take a blood test can result in additional penalties in the state of California. Other states make it a separate crime to refuse a blood test after arrest. Under the California Vehicle Code 23152 (a), anyone with a driver’s license has given implied consent to submit to a blood test after arrest under DUI suspicion. In addition, the vehicle code establishes penalties for drivers that refuse a blood alcohol test.
Drivers in the state of California are encouraged to comply by the laws that guide the highway especially after you have been arrested for suspicion of DUI. Failure to comply with the DUI laws can result in additional fines and mandatory jail time and license suspension. In the state of California, individuals that refuse to comply with the consent drivers laws will face an automatic license suspension of up to a year. In addition, drivers may lose their driving privileges for up to three years if they are proven guilty.
If you are stopped while driving under the influence of alcohol you will be required to comply with a peace officer. Failure to cooperate can result in arrest and additional punishments. However, when you are arrested, there are certain procedures that guide the arrest and the collection of blood or urine samples. An experienced DUI attorney is capable of challenging the procedure of your arrest and the evidence that is used against you. If you are arrested without a probable cause, for instance, if a police officer arrests you before performing a Preliminary Alcohol Screening (PAS) test or fails to advise you of the penalties of refusal, then, you have good reason to fight the case in court. Furthermore, there is a specific procedure that must be followed when collecting blood or urine samples. For example, a blood sample must be preserved with enough anticoagulant to prevent fermentation.
When you are arrested and you are charged with a DUI, it is a big deal that can result in jail time and license suspension. In more serious cases, the defendant may face prison time and may lose their right to operate a motorized vehicle. To speak with an attorney about your case and ways that you can challenge the evidence, you may contact the San Diego DUI Attorney at 619-535-7150.
In a DUI case, there are many factors that can impact the outcome of your case. A DUI results in misdemeanors or felonies depending on the factors of your case. To ensure that you are not wrongfully convicted you should speak with a DUI attorney before entering a courtroom.
Establishing Probable Cause
A police officer may proceed with an arrest after establishing probable cause. A police officer may establish probable cause if the driver is slurring his or her speech, if the driver has red low eyes, and if the driver is speeding or violating a traffic code. Furthermore, probable cause can be established if the police officer smells alcohol on your breath and you refuse to cooperate with a pre-arrest test. Aside from examining your behavior, a police officer may conduct a PAS (breath) test or a Field Sobriety Test (FST) in order to establish probable cause. If the police officer establishes probable cause, he or she may proceed with an arrest and a chemical test at the police station without a warrant.
The Preliminary Alcohol Screening (PAS)
The PAS test is an optional breath test that may be refused if a) you are over the age of 21 b) if you are not under driving probation. Refusing to submit to a PAS test if you are under 21 or on a probation program can result in the loss of your driving privileges and additional penalties if you are convicted of a DUI. If you refuse a PAS test it can go two way, 1) you successfully refuse the test without establishing probable cause or 2) refusal to take the test when an officer has enough reason to believe that you may have consumed alcohol can result in an arrest.
In any case, if you are not guilty meaning that you are not driving while intoxicated, then it may be best to take a PAS test. If you pass the PAS test then you will be free to go and you will never have to worry about the situation again. However, if you refuse a PAS test because you are intoxicated, it can lead to other penalties if you are successfully convicted. Individuals have the right to refuse a PAS test, but if you are arrested it can lead to other consequences. Sometimes it is better to cooperate and after challenge the evidence and procedure in court.
Furthermore, individuals that have been convicted of a DUI within the past ten years will be required to submit to a PAS test upon request. Failure to submit to a PAS test when you are obligated can result in a one-year suspension for first-time offenders. For second and further offense (meaning you refused to take a PAS test a second time after being stopped for suspicion of DUI), your license may be suspended for two or three years.
A PAS test is usually conducted through a breathalyzer which is a handheld device used to measure the alcohol found in the driver's breath. The breathalyzer test is the least accurate at detecting blood alcohol percentages, but it may help establish probable cause. If the breathalyzer produces a BAC reading above .08 percent a police officer may proceed with an arrest. If you are over the legal BAC for operating a vehicle, you will be subject to a chemical test after you have been arrested. A breathalyzer produces inaccurate readings that may be either higher or lower than your real BAC percentage. For this reason, a chemical test is conducted after the driver has been arrested. An attorney may be capable of challenging the evidence of a breathalyzer if he or she is able to prove that it has not been regularly maintained or calibrated.
Field Sobriety Test
The National Highway Traffic Safety Administration (NHTSA) established three tests to help determine a driver's impairment and establish probable cause. Failing to pass these tests can result in an arrest if the police officer believes you are too drunk to drive. The following are the three most common types of FST conducted by police officers:
Horizontal Gaze Nystagmus Test: The HGN is a test that is used to examine the jerking of the pupil when the subject is looking off to one side or following an object with their eyes. When an officer performance an HGN he or she will ask you to follow the movement of a pen or any other object. The officer will look at your eye's ability to follow the moving item and will analyze any jerking motion. Horizontal gaze nystagmus (the involuntary jerking of the eye) can occur when the subject has not had enough sleep or if the driver has had too much to drink.
One-leg Stand: the driver is required to stand with one leg up six inches from the floor. The officer will observe the driver for thirty seconds and will take note of any swaying or inability to keep their foot above the ground. The driver will also be required to count from one-thousand in ones until the officer tells the driver to stop.
The Walk and Turn test: the driver is required to take nine heel to toe steps in a straight line. After nine steps, the driver will turn on one leg and take nine more heel to toe steps in a straight line. The officer will keep an eye on the driver's balance and ability to follow instruction.
Individuals that fail to pass a PAS test or a Field Sobriety test, may be arrested with probable cause. After you are transported to the police station or holding center, you will be required to submit to a chemical test. More often than not, you will be required to take a blood test.
DUI Blood Test and Title 17
When you are arrested with suspicion of driving under the influence, you will be required to submit to a blood test or a urine test (only when a blood test cannot be administered). When you submit to a blood test, there are certain procedures that must be followed to ensure that the blood sample is pure and untampered. Under Title 17 of the California Code of Regulations, the following apply:
- The test must have been administered by a trained professional. A trained professional is capable of handling the blood sample to reduce the possibility of fermentation or contamination.
- The blood must have been properly mixed with the right amount of preservatives to prevent fermentation. When alcohol is allowed to sit without preservatives, the blood begins to ferment which can produce faulty BAC readings.
- The blood must be stored at correct temperatures
- The items used to collect the blood must have been sterilized with a non-alcoholic agent. Sterilizing with alcohol-based products can result in a higher blood alcohol content reading.
- The tools used to collect and calculate the BAC must have been regularly maintained and calibrated
Title 17 of the California Code of Regulations mandates certain procedures when collecting and storing blood samples. If there has been a violation of procedure, an attorney may be able to contest the blood sample evidence and remove the evidence from the case. When this occurs, the DUI may be dropped to a wet-reckless which holds lesser punishments than a DUI.
Blood Split Motion
To contest the blood sample evidence used against you in court, your attorney may file a blood split motion to retest the blood sample. When you are arrested and an officer conducted a blood test, the police station or other facility is required to keep enough blood for a retest. The defendant has the right to retest their blood sample. The blood sample may be not be used against you if you can prove that there was a violation of Title 17 procedures. For instance, if after a retest you found that your blood was not properly stored or treated with enough preservatives, you may be able to remove the sample from your case.
In addition, if the facility that conducted the blood draw did not keep enough for an independent test, the sample may be removed from your case. A blood split motion is an effective way to help determine if there were any violations under Title 17. If you are able to prove that your sample is impure or inaccurate, you may be able to reduce your penalties or the case may be dropped.
If you are driving under the influence and you have undergone a blood test, you may want to speak with an attorney about ways that you can challenge the evidence. In many cases, individuals are finding that their blood was not properly kept which led to a high BAC reading. Individuals who have reason to believe that their samples are inaccurate are encouraged to contest their DUI. To speak with an attorney about your case, you may contact the San Diego DUI Attorney at 619-535-7150.