The Truth About Breath & Blood Tests

The truth about breath tests

The Truth About Breath & Blood Tests

Here is a little insight into the truth about breath and blood tests when charged with DUI.  Always do either test voluntarily.

DUI officers sometimes do not properly explain a driver’s obligation to submit to a breath or blood test after an arrest or detention of a California DUI.

Often an out of state driver is confused when asked to complete a breath or blood test and refuses, possibly leading to a “Refusal.” The obligation of providing a breath or blood test, if suspected of DUI in California, is not always intelligibly disclosed by officers when presenting you with the choice to submit to the tests or not.  This is especially true if you come from another state where you can refuse the test or where you have heard it is better to refuse.  It’s not better in California.

If you are arrested for a DUI and you refuse to do a blood or breath test, the DMV can uphold a driving suspension for refusal.  This results in the suspension of your driving privilege for at least 1-year without any possibility of obtaining restricted driving privilege or an early reinstated license until the full year has passed.


Implied Consent

Here is an “Implied Consent” California law example:

Pre- Arrest
  • Upon initial contact, officer #1 asked if the driver would participate in the “optional hand-held breath test gadget – PAS test“?
  • The driver didn’t know what that meant. The officer then simply stated: “A breathalyzer”.
  • The driver respectfully refused. He politely asked to speak to an attorney first.
  • The officer rebutted with, “It doesn’t work like that”. Then asking if the driver would participate in a field sobriety test.
  • The driver agreed. He did not feel impaired and was thus confident he could pass. The driver diligently followed officer #1 and followed the directions of each one of the tests.
  • Afterwards, officer #1 concludes by saying, “In my opinion, I think you failed the field sobriety test”.
  • Officer #1 followed up by giving the driver one final chance. He stated, “Last chance, if you blow less than a .08, i’ll let you on your way right now”.
  • Again, the driver refused the voluntary, hand-held, portable (PAS) test. He again, politely asked to speak to an attorney.
  • Irate, officer #1 said: “That’s not how this is going to work”. The officer quickly followed with, “turn around you’re going in for a blood test”.
  • The driver was then cuffed and walked to the patrol car.
  • On the way to the Imperial Beach (San Diego) police station the Officer asked: “Are you going to refuse a blood test, too”?
  • Thinking that he was exercising his rights the driver said: “Yes, I would like to refuse a blood test until I can speak with an attorney”.


After Arrest
  • At San Diego County jail, the driver was put into a holding cell. After a few minutes, Officer #1 gave the driver one last chance and asked, “Last chance, are you sure you want to refuse a blood test?”.
  • Having never explained to the driver his rights, the law, or his options, the driver affirms, “Yes. I would like to speak with an attorney”.
  • The Officer left again but this time he came back waving papers in the air. He exclaims: “Now I have a signed warrant by a judge to draw your blood, do you still refuse?”
  • The Officer was so furious, he was not explaining anything to the driver. The driver found the officer to be too upset and illogical. This made the driver very skeptical of everything he was saying, so the driver asked if he could see the warrant for himself. Officer #1 became enraged and said: “It doesn’t work like that in California”!
  • Eventually, the driver was pepper sprayed and restrained by 3 other officers in order to get a blood test from him.
  • At no point were any of the following coherently explained to the driver:
    1. Choice of tests
    2. The Difference between PAS and a Breathalyzer
    3. The Right to refuse the voluntary PAS test
    4. The Requirement to Submit to a station Breath/Blood test or Lose Driving Privileges,
    5. The Officer’s Choice in the street to then only provide a blood test
  • Had the driver been treated correctly and explained all of his options, the driver would have most likely opted for the less violent and demeaning option.


Chemical Test Admonition
  • The major issue with this situation is that the officer failed to read & explain a proper CHEMICAL TEST ADMONITON to the driver.
  • The DS 367 Form No. 2.a. was not even checked. The form gives the option to the driver of, “Because I believe you are under the influence of alcohol; you have a choice of taking a breath or blood test.”
  • When it was time to offer the actual test, however, the officer failed to read the important question about taking a station or jail (Implied Consent) Breath test.


The Officers Mistake
  • Did the officer distinguish or explain the PAS breath test in the field vs. the breathalyzer at the station?
  • The officer is at fault here. He made the mistake of not relaying the truth about breath and blood tests to the driver.
  • Only a blood test was repeatedly asked of, in which the driver kept declining. At that point, the Officer is required to offer the remaining test, the station breath test.
  • It is difficult to speculate why an officer would fail to discharge his duties. The officer is not excused from a proper and complete reading and explanation of the driver’s rights.
  • The subject statute (Vehicle Code Section 23612) does NOT require the Arrestee to:
    1. State a Choice of Tests
    2. Answer any Questions.
  • However, the driver was not in violation of the Implied Consent law because the driver was not properly admonished.


Vehicle Codes & DMV Law
  • VC 23612(a)(1)(A) declares that a person who operates a vehicle is deemed to have given his or her consent to a breath or blood test.
  • If the driver is deemed to have consented, then why is it necessary for the driver to answer questions or choose a remaining test?
  • The DMV DL-369 “Implied Consent Law” book, “From Arrest to Suspension and Hearing…Peace Officer’s Guide to the Implied Consent Law” states:

“If the driver does not specifically refuse each test offered, the officer should choose the test.” [page 13]

  • The below statute does not impose a penalty for failure to choose a test, only a penalty for failure to submit to either of the two tests.
  • A reasonable inference supporting a negative refusal finding is the evidence of the absence of any statements or actions by the driver of any refusal to submit to the big Breath test at the station.
  • VC 23612(a)(1)(D) states: “The person shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing…”
  • It does NOT state the driver must answer both the admonition and the statute use the term “submit” to a test. Neither the admonition nor the below statute requires the person to state a choice or answer any questions.


In Conclusion 
  •  The driver did not specifically refuse the big breath test at the station because it was not offered or reasonably explained. In fact, in this situation, the DUI officer chose the blood test for the driver.
  • Overall, it is important to know the truth about breath and blood tests in case you find yourself in a situation like such.



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