Not offered breath test

[JamesCC]

What is the name of your state (only U.S. law)? CA

1st time DUI. Minor accident, arrested at scene after sobriety tests, no preliminary breath test.

Officer told me that I will have to take a blood test or lose my license for a year. I agreed to the blood test. At no time was the alternative of a breathanalyzer test (at the police station) mentioned.

The police report said that I "was taken to XXXHospital for the blood test"; no mention that I was offered a breath alternative.

My question: Is not being offered a choice between the breathanalyzer and a blood test grounds for suppression of my blood test results? Note that I agreed to the blood test, so I don't know if the inadmissibility of warrant-less blood draw enters in to consideration.

Thanks.

 

[Proserpina]

What is the name of your state (only U.S. law)? CA

1st time DUI. Minor accident, arrested at scene after sobriety tests, no preliminary breath test.

Officer told me that I will have to take a blood test or lose my license for a year. I agreed to the blood test. At no time was the alternative of a breathanalyzer test (at the police station) mentioned.

The police report said that I "was taken to XXXHospital for the blood test"; no mention that I was offered a breath alternative.

My question: Is not being offered a choice between the breathanalyzer and a blood test grounds for suppression of my blood test results? Note that I agreed to the blood test, so I don't know if the inadmissibility of warrant-less blood draw enters in to consideration.

Thanks.

From NOLO:

http://dui.drivinglaws.org/resources/dui-laws-state/california-dui-chemical-testing.htm

 

[CdwJava]

What is the name of your state (only U.S. law)? CA

1st time DUI. Minor accident, arrested at scene after sobriety tests, no preliminary breath test.

A PBT in the field is not required.

Officer told me that I will have to take a blood test or lose my license for a year. I agreed to the blood test. At no time was the alternative of a breathanalyzer test (at the police station) mentioned.

If he suspected drugs, or, the breath test device was not available, then he is legally permitted to only offer blood.

My question: Is not being offered a choice between the breathanalyzer and a blood test grounds for suppression of my blood test results? Note that I agreed to the blood test, so I don't know if the inadmissibility of warrant-less blood draw enters in to consideration.

And you believe that the blood test results were inaccurate, because ... ????

 

[TigerD]

And you believe that the blood test results were inaccurate, because ... ????

The would require a rather thorough and expensive discovery and analysis session by an attorney experienced in challenging gas chromatography. The science scares a lot of lawyers. They don't understand it and don't understand how to present it to juries.

Simply put, there are more opportunities to introduce error in a blood test than in a breath test. But it is a challenging case to make. But, I wouldn't assume the results are accurate.

DC

 

[Proserpina]

I don't think OP is actually questioning the accuracy itself - it sounds like he's trying to get the whole thing tossed out because he wasn't offered a choice.

 

[CdwJava]

The would require a rather thorough and expensive discovery and analysis session by an attorney experienced in challenging gas chromatography. The science scares a lot of lawyers. They don't understand it and don't understand how to present it to juries.

Simply put, there are more opportunities to introduce error in a blood test than in a breath test. But it is a challenging case to make. But, I wouldn't assume the results are accurate.

DC

Statistically such challenges are both expensive (very much so) and rarely succeed. DUI cases tend to be beaten at the stop (reasonable suspicion) or the arrest (probable cause). If those attempts fail, then it's usually time for a plea or a very, very expensive battle of the experts.

And, if the test was done at a hospital, are we talking whole blood or serum? The results might vary slightly depending on which method was used. DOJ and virtually all crime labs in CA use whole blood while hospitals often use serum results which can be 10-15% higher than whole blood.

 

[CdwJava]

I don't think OP is actually questioning the accuracy itself - it sounds like he's trying to get the whole thing tossed out because he wasn't offered a choice.

That's what it sounds like. Unfortunately for the OP if the breath test was not available or the officer suspected drugs, then he doesn't even have to make the offer of breath.

 

[TigerD]

Statistically such challenges are both expensive (very much so) and rarely succeed. DUI cases tend to be beaten at the stop (reasonable suspicion) or the arrest (probable cause). If those attempts fail, then it's usually time for a plea or a very, very expensive battle of the experts.

True. However, I tend to think, in a large part, that is because lawyers don't understand the science well enough to communicate it to juries effectively. After years of CSI, jurors are pre-disposed to blindly accept science. And lawyers find it easier to beat up on cops.

DC

 

[CdwJava]

True. However, I tend to think, in a large part, that is because lawyers don't understand the science well enough to communicate it to juries effectively. After years of CSI, jurors are pre-disposed to blindly accept science. And lawyers find it easier to beat up on cops.

DC

The human element is far more fallible than the science, hence the reason they go for the detention and the arrest. And, understand, the prosecutors have their experts as well, and those experts will testify as to the reliability of the science AND the procedure used at the lab in question. And since the science is generally accepted as reliable everywhere (meets the Frye and/or Daubert standards), it's an uphill battle unless you can argue the process done in a particular case at a particular lab (or the procedures of that lab) tend to lend itself to error, the defense will very often lose these technical fights. A successful challenge will be less about the reliability of the test than the method of collection and/or storage of the sample.

 

[JamesCC]

My last post didn't make it thru, so I will try again.

I am not challenging the blood results. I was wondering about its admissibility without me being offered the alternative breath test.

As far as I know, there was a functioning breathanalyzer machine around. There was no suggestion that I was on any intoxicant except alcohol. In fact, I don't think my blood was tested for anything but alcohol.

From Prosperina's link, it sounds like I am out of luck. But, with the ruling last year that blood draws must be voluntary or require a warrant, I don't know if this changes things.

Of course, I doubt that I will take it up to the Supreme Court for the answer.

 

[FlyingRon]

You consented however. There was nothing improper in the officer telling you (quite rightfully) that your refusal would result in a suspension. In California, the choice of which chemical test is the states NOT yours. They don't have to offer them all or allow you to use.

Your choices are: refuse and deal with the administrative suspension and take your chances in court that there isn't compelling evidence of your intoxication otherwise or take the test.

 

[JamesCC]

Yes, I agreed to the blood test. The legal question is: if the alternative breath test is available, is the lack of choice a coerced blood draw?

 

[CdwJava]

My last post didn't make it thru, so I will try again.

I am not challenging the blood results. I was wondering about its admissibility without me being offered the alternative breath test.

More administrative than criminal, so chances are this will NOT get you off the hook.

From Prosperina's link, it sounds like I am out of luck. But, with the ruling last year that blood draws must be voluntary or require a warrant, I don't know if this changes things.

Did you refuse to cooperate or allow them to draw blood? One can refuse to grant their consent, but still cooperate with the withdrawal. Understand that a refusal still allows the police to get their test, it's just accompanied with a mandatory suspension for the refusal in addition to the evidence obtained via the test. And, even if the test comes back negative or no charges are filed, you can still lose your license if you refuse to comply with the test.