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Choosing the Right Blood Alcohol Test

Should you take a blood test or a breath test if you get pulled over by a police officer on suspicion of driving under the influence? What about taking a blood or breath test at the police station? It is important to know your rights and know what options you have if you have been stopped on suspicion of driving under the influence. Choosing the right blood alcohol test can be important when building your defense.

Choosing a Breath Test

Preliminary Alcohol Screening Test: Should I agree to take a preliminary alcohol screening test (after being stopped) if requested by a police officer? Police officers are not required to explain to a suspected impaired driver that this screening test, which determines one’s alcohol level closest to the time of driving, is not required by law. In most circumstances this test should not be agreed to. This is because it provides the police with additional negative evidence, which may confirm the accuracy of a subsequent breath or blood test. The only exception to the general rule of not taking the test would be if a person only had one drink or did not drink at all and their blood alcohol would clearly be under the legal limit.

Should I choose to take a breath test to determine my alcohol level (typically at the police station)? California Vehicle Code Section 13353 requires a person who is suspected of driving under the influence to submit to a blood alcohol test (breath or blood). There is a difference between the preliminary test and the test at the police station. The preliminary test is done in the field using a small handheld device and it is not required. The blood alcohol test at the police station is required and it is usually done with a bigger machine that is plugged in. It is Hoffman & Associate’s general legal advice to submit to a breath test at the police station to determine one’s alcohol level. In contrast to blood, breath testing has an acceptable .02 variance. This possible acceptable margin of error means that if your tested blood alcohol was .08, in truth you may have actually had a blood alcohol of .06 or .10. It is always better to have a less accurate test that is being used against you as evidence versus a more accurate test. This variance range is good for the defense of a DUI case and it allows for better negotiation and a better defense strategy should the case go to trial.

Choosing a Blood Test

What are the pros and cons of taking a blood test? Typically, where a breath test is administered at the station, a blood test is frequently given at a hospital. This requires the suspected impaired driver to be transported from the police station to the hospital and then back to the police station which can create additional time delays on a person’s release. Blood tests have been found to be more accurate than breath tests. As a result, blood tests do not have the same range of marginal testing error as a breath test has. Prosecutors typically view blood test results as stronger evidence of an accurate blood alcohol test and are often less negotiable on blood tests versus breathe tests.

Refusing to Take a Test

Should I refuse to take any chemical test? Traditional views dating back many years viewed it as more favorable to not supply the prosecutor with more evidence against a suspect drunk driver. Not having a chemical test result whether breath or blood to use against a suspected impaired driver would clearly be a weakness in the prosecutor’s case. But, years ago the legislature added California Vehicle Code Section 13353 which created substantially increased penalties for anyone who does not submit to a breath or blood test. These consequences include a substantially harsher license suspension from the DMV in addition to mandatory jail time from the courts, which is not required for even a person driving with a very high blood alcohol level who submitted to a chemical test. Additionally, California Vehicle Code 13353 also suggests that prosecutors should increase the length of a first offense DUI alcohol program from 3 months to 9 months for any driver that refuses to submit to a chemical test.

The relevant section of California Vehicle Code Section 13353 provides that:

  1. If a person refuses the officer's request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer's sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, and that the person had refused to submit to, or did not complete, the test or tests after being requested by the officer, the department shall do one of the following:
    1. Suspend the person's privilege to operate a motor vehicle for a period of one year.
    2. Revoke the person's privilege to operate a motor vehicle for a period of two years if the refusal occurred within 10 years of either (A) a separate violation of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, that resulted in a conviction, or (B) a suspension or revocation of the person's privilege to operate a motor vehicle pursuant to this section or Section 13353.2 for an offense that occurred on a separate occasion.

If you have been arrested on suspicion of driving under the influence you should contact an experienced attorney, like those at Hoffman & Associates, as soon as possible to begin preparing you defense.

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My family and I simply owe our life and future to Ron Hoffman. If you are looking for a lawyer that goes above and beyond the call of duty you can't find a better lawyer than Ron. He took my case head on from the moment I called his office. I was involved in an accidental hit and run where I was unaware of the injury. Every step of the way, Ron guided me through an almost two year long investigation and court settlement process and was constantly by my side through out every crossroad... Bill Martin
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Ron Hoffman and his staff were Fantastic when dealing with such a serious issue of DUI. When I first Called Ron I was very nervous and worried for my daughter and her freedom. She had a failure to appear on top of her DUI and I knew just how bad this could be. Ron was able to immediately put me at ease and gave me the confidence that there was hope and a light at the end of the tunnel. Ron was able to get the failure to appear dismissed and also no jail time for my daughter... Claude Brown
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I had a DUI issue recently. I have never had a problem with the law as serious as this one. I did panic a bit after and knew I had to get a lawyer to help my future. I researched the Web and read the reviews for awesome DUI Lawyers. Hiring a lawyer can be intimidating. Ron's 30 years experience and step by step guidance helped me with my case. Jonie was amazing with keeping me calm. Ron Hoffman is a great lawyer and I would refer any friends or family to him... Manuel Gomez
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Ron was so accommodating and professional. With a Firm like his you wouldn't expect him to be as accessible, but he immediately returned phone calls, was easy to communicate with and was very sympathetic to my situation. He went above and beyond and was able to get a better result than I'd hoped or expected. I highly recommend Ron Hoffman and his firm. He made a difficult and anxiety fueled process bearable and made me feel safe. He is a lovely man. One does not wish to need a criminal attorney, but if you do need one, Ron's the guy to call... Teri A.
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Ron and his team were the perfect pairing for what I needed taken care of. Every step of the way he was extremely helpful and informative (not his first rodeo). His work ethic and attitude were exemplary and it showed with the results of using his services. I would recommend anyone I know to give Ron a call if they need help in his realm of expertise. Many thanks Ron and associates!... Donald N.
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