DUI In California

Reader’s Question:

I’m afraid I may just be caught drunk driving here in West Covina, California because I don’t have anyone to drive me home everytime I go out to have some drink. Anyways, my question is, is it true that I can refuse to take the handheld breath test if I am stopped for DUI?

Rebecca

West Covina, CA

Before I go and answer your question, let me just tell you that you can definitely avoid to be caught drunk driving in West Covina, California. The safest way to do that is not to drink at all, but if you really can’t avoid it and you don’t have anyone to drive you home, you can take a cab to get home safe and sound and avoiding a criminal charge. Now, to answer your question, yes you can refuse the handheld breath test if you are stopped for DUI. Unless you are under 21 years old, submission to the Preliminary Alcohol Screening (PAS) is not legally required.

A lot of police agencies are now using the roadside hand held breath-testing device, PAS or more recently, Evidential Portable Alcohol System (EPAS) as an additional field sobriety test (FST). These devices are supposed to give a very rough indication of the driver’s blood alcohol concentration. The PAS units are very unreliable and primitive and are supposed to be used only to aid the officer in making a decision after he has given the other FST’s. But unfortunately, a lot of judges are permitting the results into evidence at DUI trial.

Reader’s Question:

I know some people who have been arrested for DUI here in Alameda, California and some of them claim that they are innocent. How would a police officer claim that a driver is under the influence?

Hope

Alameda, CA

In a DUI investigation in Alameda, California, the police officer usually claims that the DUI suspect “performed poorly” or “failed” the field sobriety tests and the handheld breath test indicates that the driver’s blood alcohol level was above the legal limit. Based on this, the officer would “form an opinion” that the driver is under the influence or the driver’s ability to drive a motor vehicle safely is impaired. After this, the officer would arrest the driver and take him/her to the police station (or hospital) for a chemical test.

The driver suspected for DUI would choose between a breath test and a blood test. The state of California has an “Implied Consent Law” that says that a person who is arrested lawfully for DUI should submit to one of these tests. A refusal could subject the DUI suspect to stiffer court penalties and possibly a one-year (or longer) driver’s license suspension. If the driver chooses a blood test, the blood sample would be forwarded to a crime lab for analysis. If he/she chooses a breath test, the officer would see the blood alcohol content reading immediately after the driver blows twice into the breath test machine. The officer sometimes tells the DUI suspect of the result, sometimes not.

Reader’s Question:

Regardless of guilt, what legal rights does a person have during a DUI arrest? I wanna know these things just in case I get arrested for DUI in Alhambra, California.

Vito

Alhambra, CA

If you will be arrested for DUI in Alhambra, California, it would be of great help if you know the legal rights that you have during a DUI arrest. These rights are actually commonly ignored by police officers. First of all, there should be sufficient facts to legally constitute a probable cause to stop your vehicle. The officer should also have enough reasons to legally detain and arrest you for DUI.

You must be advised that submission to field sobriety tests and portable field breath test is not required by law. Furthermore, if you are already in custody or you have already been arrested, you should be advised of your constitutional rights, otherwise known as the “Miranda” warning before any further questioning takes place. You should also be given a choice of breath or blood testing and if you refuse any chemical test, you should be advised of the legal consequences and this would be the “implied consent” advisement. If a breath test is conducted at the police station, since the breath sample is not saved, you should be given a chance to obtain a blood sample for later independent testing by your DUI defense attorney.

Reader’s Question:

We are so worried about our father because he was just arrested for DUI here in Corona, California. We just bailed him out and now we are figuring out what to do next. What could be the possible defenses in a DUI case?

Nelson

Corona, CA

Possible defenses in a DUI case are almost limitless due to the complexities of the offense. Your father could use a lot of defenses on his DUI case in Corona, California. But there are most common defenses in a DUI case.

First of all, the prosecution should prove that your father was driving at the time the offense was committed. If there was no witness to his driving, the prosecution should prove this essential fact using both direct and circumstantial evidence. The police officer should also have a probable cause to stop, detain and/or arrest your father because if not, evidence against him will be suppressed. When your father was already under arrest, he should have been warned about his Miranda Rights because if not, incriminating statements could be suppressed if warnings were not given during a custodial interrogation. The implied consent warnings should have also been given to your father. He should have been advised about the consequences of refusing to take a blood or breath test because if not, he could use that a defense.

Reader’s Question:

If I try to run around to sober me up first before driving, will I be safe in taking a breath test for a DWI arrest in California if in case I was caught by a policeman? How long after consuming an alcoholic drink can they detect it with a breath tester?

Samuel.

Bakersfield, CA

As we know, alcohol does not remain in the blood long enough for most tests to detect recent use. That is why breathalyzers and oral fluid tests are now being commonly used by law enforcement officers in California to easily and conveniently detect current use of alcohol on a DWI subject. Exercising won’t help you sober up faster after drinking too much alcohol. Thus, it will not be safe but it will just be tiring for you if you do that.
Detection of alcohol with a breath tester, depends on how much the person had to drink, and how long ago they drank. Alcohol is eliminated in the body at the constant rate of about .015% BAC per hour, that is about one drink per hour. If a person had only one drink, the maximum intoxication level they might have would be about .02%. This means that within one hour, their alcohol level would possibly be about zero. On the other hand, if a person had an alcohol level twice the legal limit for drunk driving in most states, for example, .20%, it would take13 hours or more for their alcohol level to reach zero after they stopped drinking. Breath alcohol testers measures blood alcohol level, which is an actual measure of intoxication. Therefore, a person who is not intoxicated has no alcohol in their bloodstream, and a breath alcohol test will provide a negative result.

Reader’s Question:

My husband was charged with DUI here in California. He insists that he never drive drunk. He is diabetic and according to his attorney, if he experiences hypoglycemia, he may look like drunk. Is it true that the breath test conducted can clear him?

Diana

Daly City, CA

Police officers in California have no inherent skill and little training in detecting levels of intoxication. They are actually psychologically predisposed in a drunk driving investigation to “see” what they expect to see, disregarding any alternative explanations.

One of those possibilities is that if a diabetic experience hypoglycemia or low blood sugar levels. Symptoms of this include poor balance, staggering, slow and slurred speech, impaired motor control, flushed face, disorientation and drowsiness which are also the typical symptoms of alcohol intoxication. If this is the case, the driver will look and act like a drunk driver to the police officer and will fail any “field sobriety tests”.

A breath test will not clear him. Breathalyzer use infrared beams of light which are absorbed by any chemical compound (including ethyl alcohol) in the breath which contains the “methyl group” in its molecular structure. The machine assumes that the compound is “probably” alcohol. One of the thousands of compounds containing the methyl group which can register as alcohol is “acetone”. A by-product of hypoglycemia is a state called “ketoacidosis”, which causes the production of acetone in the breath. This means that the Breathalyzer will read significant blood alcohol levels on a diabetic’s breath where there may be little or none.

Reader’s Question:

My boyfriend was recently charged with DUI here in Pasadena California. They say that breathalyzer does not give an accurate readings all the time. If I will be pulled over for a DUI suspicion, do I have a choice in the matter of taking a chemical test?

Angelina

Pasadena, CA

In the state of California, the two most commonly administered chemical tests are blood and breath tests. Although that accuracy of the breath test is being challenged by many scientists because of may determinant factors. If breath and blood samples are unavailable, or if the arresting officer is suspicious of drug use, a urine test can be taken. A significant fact that many officers fail to inform the suspect is the option to have a blood test taken after the breath test. The reason for this is that the breath test sample will not be available for the defense later on.

Among these three chemical tests, blood samples are typically the most precise. The technology used for breath tests are notorious for errors and flaws that cause unreliable test results. The least trustworthy of the three is urinalysis.