Can I Choose Which Chemical Test to Take?

  • May 27, 2017

    In California, there’s something called implied consent that applies to all drivers. It means that if you drive a vehicle in California, you agree to take a chemical test that measures your alcohol levels. Law enforcement can’t just give the test to anyone they want. Rather, you must be under suspicion for drunk driving or DUI.

    You may or may not have the option to choose what chemical test to take. There are three types of chemical tests. These are blood, breath and urine. Blood and breath tests are the commonly used tests in California.

    A blood tests involves taking your blood. A nurse takes the sample. They send it to a state laboratory for testing.

    Results can take weeks if not months. In some cases, the state might take too long to complete the results. If the results take more than a year, the state might not be able to pursue charges against you because the results took too long.

    A breath test usually happens at the police station. Law enforcement has an instrument that measures the alcohol in a person’s breath. This test produces results instantly.

    There are a number of things that can affect the validity of a breath test. Law enforcement needs to make sure that they observe you for at least fifteen minutes before you take the test. They need to make sure that you don’t vomit, regurgitate, smoke or put anything in your mouth for those fifteen minutes. If you do, the results of your test can be invalid.

    Law enforcement also needs to make sure that you give a sufficient sample of your breath. If you don’t, the instrument might not be able to measure your alcohol levels. People with certain health conditions or the elderly might have trouble completing a breath test.

    While you might be able to choose what kind of test to take, you should never refuse a breath test if that’s all that’s offered to you. Because of California’s implied consent laws, if you refuse to take the chemical test when it’s offered to you, the state can revoke your driver’s license for a period of time. This revocation can stand even if you’re ultimately acquitted of drunk driving. All experienced Los Angeles DUI lawyers recommend that you take the breath test when it’s offered to you.

    It’s hard to make a call as to whether a blood test or a breath test is more favorable to a person that’s charged with drunk driving. There are often problems with both tests when it comes to the state proving the charges against you. Which test might be better depends on the unique circumstances of your individual case. As a drunk driving arrest occurs, it’s hard to evaluate the case and make a decision on the spot.

    In some ways, a breath test might be more favorable. The officer might not be able to follow directions in your case to administer the test properly. If they err, it may be easy to explain to a jury how the test is invalid. In addition, law enforcement has to test a breath test machine periodically. If they don’t test the machine the way they should, it might not produce accurate results.

    On the other hand, the time that passes between an arrest and a blood test can be favorable for a person facing DUI charges. Your alcohol level can actually rise after an arrest. It’s important to work with a skilled attorney so that they can make the appropriate arguments to the prosecutor and the jury about the chemical testing in your case.

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