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Articles Posted in Sobriety Tests for BAC/ Implied Consent


You may have heard the “tricks” to defeating a breathalyzer test: place a copper penny under your tongue when you blow into the device, drink mouthwash before being tested (surreptitiously, of course), eat breath mints, hold your breath or use other breathing techniques before or during blowing, burp while blowing into the machine (however that would be accomplished), and some other wacky tricks. None of them will work!

The breathalyzer, as it is commonly called, actually describes a number of different breath testing devices that use a variety of techniques to measure the blood alcohol concentration (BAC) in a person’s blood. The device might employ a chemical test, but some devices use infrared spectroscopy or fuel cell technology. All of these devices require the subject to blow into a mouthpiece. The breath tested comes from the subject’s lungs.


Most California drivers are aware that the law does not convey the same Constitutional rights, which are normally afforded to an arrestee, when the person is arrested for driving under the influence. For example, the driver does not have an immediate right to an attorney or the right to remain silent. Most important, a driver lawfully arrested for suspicion of driving under the influence must submit to a chemical test or face a mandatory suspension of his or her driver’s license.   This is known as the “implied consent” law. Even when a driver refuses the test but then changes his or her mind and submits, it will still be considered a refusal.

The law requires that the arresting officer clearly advise the driver that a refusal will result in a suspension of the driver’s license to drive. (Vehicle Code §23612(a)(1)(D).) However, the warning is enough; the officer is not required to obtain the driver’s acknowledgement that the driver understands the consequences of refusal.


If you are arrested for driving under the influence of alcohol and your blood alcohol level is only slightly above the legal threshold of 0.08%, your attorney might consider what is called the “rising blood alcohol” defense. Without getting into the scientific details, this defense asserts that at the time you were driving, your blood alcohol level was lower than the level you registered at the time of your arrest.

Depending on a number of circumstances including your weight, whether you were drinking on an empty or full stomach, and other factors, the alcohol you imbibe can take 30 minutes to an hour or more to rise to its peak blood alcohol level in your body.

california supreme court holds that circumstantial evidence of intoxication may be considered in dui hearings

A driver was pulled over in Orange County by the CHP when the officer observed her car swerving erratically. Upon contacting the driver, the officer observed indications that she had been drinking alcohol. The officer performed various field sobriety tests on the driver, the result of which further indicated to the officer that the driver was under the influence of alcohol. The driver was placed under arrest and it was determined by a breath test that she had a blood alcohol level near the threshold legal limit of .08%. A later blood draw indicated a blood alcohol level slightly over the limit at .096%.

She exercised her option to have a DMV Administrative Per Se Hearing to challenge the automatic suspension of her driver license. At the hearing, an expert testified on her behalf. According to the expert, the blood alcohol tests suggested that here blood alcohol level was rising and that at the time of the stop, her blood alcohol level was not at the legal limit of .08%. The expert’s testimony is technical and not relevant for purposes here. Suffice it to say that the gist of the driver’s argument was that she introduced evidence of a fact that rebutted the presumption that she was driving under the influence but the administrative hearing officer and the trial court discounted that evidence (the expert’s testimony) in part by relying on the reports made by the CHP officers who stopped her. The Supreme Court was ultimately tasked with deciding whether the trial court erred by considering the circumstantial evidence established by the officers’ reports of their observations. On April 6, 2015, the Supreme Court issued its ruling where it held that the trial court did not err.

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Up until last week, the law allowed police officers to forcibly draw blood from any person suspected of driving under the influence, if that person refused to voluntarily submit to a chemical test of their blood, breath or urine. The U.S. Supreme Court has now determined that “forced blood draw” is a violation of the Fourth Amendment warrant requirement.

A 1966 U.S. Supreme Court decision made an exception to the Fourth Amendment warrant requirement in DUI related forced blood draws. It basically stated that no warrant is required to forcibly draw a person’s blood if the arresting officer believes that the person is driving under the influence. The rationale was that blood-alcohol evidence is time sensitive because alcohol dissipates quickly in the bloodstream, and the time it would take to obtain a warrant would affect the evidence, the evidence being the blood.

On April 17, 2013, the U.S. Supreme Court limited the 1966 decision to say basically that police officers must follow the Fourth Amendment requirement to obtain a warrant before forcibly drawing blood from a DUI suspect. It further went on to say that there is no automatic exception to the warrant requirement as stated in the 1966 case and that quick dissipation does not warrant the exception to the Fourth Amendment. However, it did provide that not every situation would require a warrant and that it should be determined case by case, after taking into consideration all of the circumstances in any individual case.

When someone has been arrested for driving under the influence, the arresting agency submits a report to the Orange County District Attorney for their review and ultimate filing of charges. It may seem pretty straight forward in that someone has been pulled over, given a test and then determined to be driving under the influence. However, there are five main pieces of evidence that the district attorney is relying upon when determining whether or not to file charges. To follow is an explanation of the evidence, and how it is relied upon, when determining whether or not to file charges against someone who has been arrested for DUI.

1. The police officer’s observation of the accused’s driving: Someone who is driving too slow or too fast, straddling the lines or weaving in the lanes.

2. The police officer’s observations of the accused’s personal symptoms: The odor of alcohol, slurred speech, watery eyes, swaying and/or off-balance.

3. How well the accused performed the field sobriety tests: These tests are designed to determine balance and coordination. Although field sobriety tests are not required, most people don’t know this and comply when asked to perform the roadside field sobriety tests. These tests are difficult to pass, even for a sober person and are subjective. They are based on the officer’s opinion on how well they were performed and thus are unreliable.

4. The statements the accused makes after being pulled over: When the officer asks whether or not the accused has had anything to drink, the response will obviously is evidence.

5. The blood alcohol results: When trying to determine whether or not someone is driving under the influence, there are two “road-side” tests the officer can perform. Neither of which, by the way, is required by law. One is the field sobriety test mentioned above; the other is the roadside Breathalyzer. This is a handheld device used by officers in the field to assist them in determining whether or not to arrest a suspected drunk driver. These tests are also unreliable in that they are not considered 100% accurate.

What most people don’t know is that, both the field sobriety test and the hand-held, roadside Breathalyzer tests can be refused without any legal repercussions. However, In the event that a person refuses to submit to either of these road-side tests, the officers can then make a determination that you are under the influence, arrest you and then require you to take a chemical test of your breath, blood or urine at the station. It should be noted that urine tests are only used when a breath or blood test is unavailable. Law requires the chemical test at the police station, unlike the roadside test, and if refused, the officers can then forcibly take blood to determine whether or not you were driving under the influence of alcohol and/or drugs.

There are guidelines that law enforcement personnel must follow when detaining and questioning someone for DUI. It is important to understand that if these strict guidelines are not followed and documented, your attorney may be able to have the charges dismissed.

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In California, if you have a driver’s license, you are obligated to take a chemical, breath or urine test if you are arrested for DUI or DWI. There are consequences to refusing to take a chemical test. However, there are also defenses and anyone who is being charged with DUI and refusing to take a chemical test, should consult with an experienced DUI defense attorney to ensure that the arresting officers followed proper procedure.
To further explain, if you are pulled over and asked to take a roadside breath test, a Preliminary Alcohol Screening Test, otherwise know as a PAS test, under California law, you are not required to take the test. There are a lot of problems with the PAS test and thus, not necessarily the best option. However, if you are arrested for DUI, once you arrive at the police station, you must submit to a breath or blood test. It is recommended that you agree to a breath test, rather than blood. You need only submit to a urine test if you have been arrested for driving under the influence of drugs.

If you refuse to take either test, you are presumed to be under the influence and, along with being charged with DUI, the additional charge of refusing to submit to a chemical test, will be added. This allows the prosecution to enhance the penalties. On a first offense for DUI, you lose your license for 4 months. However, if you refused to submit to a test, you lose your license for one year.

There are strict guidelines as to what a police officer must advise someone who is refusing to take a chemical test. The officer must fill out a Chemical Test Admonition Form and read it, word for word, to the individual. The officer must then properly document the responses. If the police officer has failed to properly document the admonition form, an experienced DUI defense attorney will have a good chance of getting a “No Refusal” outcome, based on the fact that the officer didn’t follow guidelines prescribed by law.

If an individual refuses at the scene to take a chemical test and is arrested, once at the police station, that individual can then change his or her mind and agree to a test. If however, the individual refuses to take a blood test and requests a breath test, and the officer refuses to allow the breath test and will only allow a blood test, this is not a refusal. This is an example of improper procedures on the part of the officer. The individual must be given the chance to take the test, and decide which test they are willing to take.

Refusing to take a chemical test if arrested for DUI has harsh punishments. The DMV will suspend your license of one year and if you have a prior, it is a two-year revocation of your driving privilege. Further, unlike a first offense for DUI, if you refuse to take a test, you may not apply for a restricted license.

If you are being charged with refusing to take a chemical test after being arrested for DUI, it is imperative that you hire a DUI Defense Attorney who is familiar with and knows the laws as they relate to refusals as well as the duties required by the arresting officer. Failure to properly follow guidelines and/or properly document the event on the part of the officer can result in a “No Refusal” verdict.

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There are many things that the Court should take into consideration when the prosecution is presenting the results of a field sobriety test. There are a number of things that can affect a person’s performance when being asked to perform a roadside field sobriety test. First, anyone who is pulled over by a police officer, especially late at night, typically is nervous. When asked to perform a field sobriety test, the natural instinct of a person is that they must perform perfectly or they will be arrested for DUI or DWI, even if neither is the actual fact. An experienced Orange County DUI defense attorney knows that the average person reacts to such a stop in similar ways. Other things to consider are: 1) Not only is the person nervous, but, what about the road conditions on which the person is instructed to perform a field sobriety test, as well as they type of shoes being worn. An uneven, and/or rough surface can play a part in how well a person performs a field sobriety test. 2) Some people are just naturally more coordinated than others; 3) A person who is overweight may perform less effectively than an average weight person; 4) Medical conditions can also play a role in how well a person performs. As an example, a person who suffers from balance issues such as vertigo will most likely perform poorly on a field sobriety test.

For the above-mentioned reasons, anyone who has been arrested and/or charged for DUI or DWI, based on the results of a FST, should seek the advice of an experienced DUI Defense Attorney, who has experience in defending driving under the influence charges. An aggressive defense attorney should look carefully for mistakes or failures on the part of the arresting officer, to follow procedures. To be considered is whether or not the officer gave proper instructions that the arrestee could understand. To a police officer, the instructions for a FST are second nature. However, for the average person, it can feel complicated and not clear how the officer expects that person to perform the test.

Field sobriety tests basically measure a person’s ability to pay attention and their coordination. Some people are just naturally better able to pay attention and follow instructions and some people are just naturally more coordinated. So, just because a person performs poorly, or less than perfect on a FST does not automatically mean that alcohol is involved. There are many other factors that can be attributed to a poor result.

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Orange County, California law enforcement agencies and prosecutors are extremely aggressive when it comes to driving under the influence or DUI. One of the tools officers rely on is the Field Sobriety Test exercise. These tests are used as part of the officer’s investigation as well as the district attorney’s prosecution. However, FST are seriously flawed and unreliable.

An experienced DUI Defense Attorney will look closely at the police report and at the conduct of the investigating officers. Specifically, any misconduct or violation of rights must be taken into consideration. Further, if a field sobriety test was performed, and this is what the arrest was based on, it should be challenged due to the fact that field sobriety tests are subjective, basically the opinion of the officer performing the test. There are many factors, other than alcohol, that can effect the way a person performs on FSTs. Here is a list of such factors:

– weather
– poor lighting
– uneven surface conditions
– the distraction of traffic, lights and spectators
– the type of footwear being worn
– fatigue
– weight, age, physical condition and natural coordination
– nerves
– intimidation
– the officer’s instructions
– illness, and/or
– injury
Any or all of these factors can effect a person’s performance of an FST exercise. However, these tests are still considered reliable. An experienced DUI defense lawyer should still challenge the manner in which the tests were administered, the bias of the DUI officers and the fact there are a number of situations that can explain a person’s poor performance. Officers rarely, if at all, take the time to consider the factors listed above.

Anyone who has been arrested for DUI in Orange County, California, Driving Under the Influence or Drunk Driving, needs an attorney who is skilled and will gather the appropriate evidence, know how to use it intelligently and efficiently, and render the best possible outcome for their client.

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Before even getting pulled over for a DUI, the police officer is already observing your driving. If you are swerving in and out of lanes, speeding or driving too slow, those are obvious signs of intoxication. The officer will then pull you over and observe you and your behaviors. If you smell like alcohol, have bloodshot eyes or slur your speech, those are signs of intoxication as well. If the officer believes you may be intoxicated, he will ask you to get out of the car and participate in field sobriety tests.

Field Sobriety tests are tests given to alleged drunk drivers by officers to test driver sobriety. The National Highway Traffic Safety Administration has standardized three tests that should be given to all drivers suspected of being drunk. First, there is the horizontal gaze nystagmus (HGN). The officer puts a pen or something in front of your face and asks you to follow the object with just your eyes. Intoxicated people have a hard time doing this. Instead of smooth tracing of the eyes, the eyes will jerk and have a difficulty following the object.

Another field sobriety test is the walk and turn test which tests divided attention. In this test, the officer asks you to walk in a straight line with one foot following close behind the other. After taking about nine steps, you are asked to turn around using just one foot and walk the other way. Intoxicated people do not have balance and cannot follow these instructions.

The last standardized field sobriety test is the one leg stand that also tests divided attention. The suspect is asked to stand and one foot and count. An intoxicated person will not have good balance or will not count properly.

Officers may give other tests to test sobriety, most likely if the suspect cannot take the standardized field sobriety tests. Whether you live in Fullerton, Santa Ana or Mission Viejo, if you are pulled over for a DUI, you need an experienced DUI attorney to assist you.

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