DUI BLOG

Of all the questions I get about what to do and what not to do during a California DUI stop, the question about whether a person has to give a breath sample after a DUI stop is among the most common of the questions.

Strangely enough, the answer is both “yes” and “no” depending on which breath sample we’re talking about.

When law enforcement pulls someone over, chances are they already think the person is driving under the influence. However, in order to arrest them for a California DUI, law enforcement needs probable cause. This means that the officers must have facts that would lead a reasonable person to believe that the person is driving drunk. In other words, the officers cannot just arrest someone on the hunch that the person is driving while under the influence. They need facts to suggest that the person is actually driving drunk.

The officers get the probable cause, or facts, through their own observations and when the driver performs and fails the field sobriety tests. In addition to the field sobriety tests that people typically think of, there is the preliminary screening alcohol (PAS) test. This is a roadside breathalyzer that is also considered a field sobriety test. And like the other field sobriety tests, the PAS test is optional. If the PAS test shows that a person has alcohol in their system, then the officers have the facts that would suggest that the person is driving under the influence.  

According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”

The officer who makes the stop, by law, must advise the person that the PAS test is optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”

If the PAS test detects alcohol in the person’s system, they’ll likely be arrested for a DUI. Once the person is arrested, they must take a chemical test which can either be a breath or a blood test according to California’s Implied Consent Law.

California Vehicle Code section 23612(a)(1)(A) sets forth the Implied Consent requirement. “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”

In other words, if you’re licensed to drive in California, you have impliedly consented to give either a breath or a blood sample when you are lawfully arrested on suspicion of a California DUI.

The key word here is “lawfully” arrested. If the officer did not observe any poor driving and the person does not perform any field sobriety tests including the PAS test, the officer may not have the probable cause to arrest the person. And if the officer does not have probable cause that the person is driving under the influence, yet they arrest the person anyways, the arrest is no longer lawful.  

When an arrest is unlawful, all evidence obtained after that arrest, including the results of the chemical test are inadmissible.

As you can see, it can be rather complicated. So simply put, you do not have to take the pre-arrest breathalyzer called the PAS test, but you do have to take a post-arrest chemical test which could include a breathalyzer.

In December of last year, both Lawrence Taylor and I wrote about the United States Supreme Court’s announcement that it would review the criminalization of chemical test refusals following a DUI stop. On June 23^rd, that decision was announced.

In a split decision, the Court held that states can punish a person for refusing a chemical breath tests following a DUI stop absent a warrant. States, on the other hand, cannot punish a person for refusing a chemical blood test absent a warrant.

In late 2015, the Hawaii Supreme Court issued a decision that decriminalized chemical test refusals in DUI cases. Prior to the decision, it was a petty misdemeanor to refuse a chemical test after a DUI arrest punishable by up to 30 days in jail and/or a $1,000 fine.

The Hawaii Supreme Court reasoned that criminalizing a chemical test refusal violated the 4th Amendment because we have the right against warrantless searches by law enforcement and the government cannot punish us for essentially invoking our 4th Amendment right. Furthermore, any consent to search (which is what a chemical test is; a search for alcohol in your breath or blood) cannot be voluntary if our only options are giving up a constitutional right or be punished.

Similar cases to that of Hawaii’s coming from North Dakota and Minnesota prompted the United States Supreme Court to take up the issue.

The decision affects thirteen states which make it a crime or increases penalties for to refusing to take a chemical test. Amongst those states is California where a prosecutor can allege that a person refused the chemical test in addition to the DUI charge in the criminal complaint. If the refusal is found to be true, a person can face additional penalties through the court case and a longer suspension of driving privileges through the DMV.

Writing for the majority, Justice Samuel Alito said that breath tests do not implicate “significant privacy concerns.” Alito went on to say that breath tests are different than blood tests which require the piercing of skin and leaves a biological sample in the government’s possession. Breath tests, on the other hand, only require a person to blow into machine.

Justices Sonia Sotomayor and Ruth Bader Ginsburg said they would have gone further and required search warrants for both breath and blood alcohol tests. Justice Clarence Thomas dissented, saying he would have found both tests constitutional.

So what does this mean for California?

Well, we’ll just have to wait and see exactly how this plays out. However, based on the Court’s decision, California courts and the California DMV can still punish people for refusing a chemical test after a DUI arrest, but only if the chemical test is a breath test. If the only chemical test that is available is a blood test after a DUI arrest, officers must obtain a warrant before forcing a person to submit to the blood test and a person cannot be punished for refusing that blood test absent that warrant.

This decision, unfortunately, is yet one more example of the erosion of our constitutional rights. The 4^th Amendment and the warrant requirement was written to ensure that searches are not arbitrary capricious. Warrants ensure that searches are reasonable so as to protect the privacy of citizens. There mere arrest of a person does not make a search, be it a breath test or otherwise, per se reasonable.

Chisel, chip, and off falls our 4^th Amendment right against unreasonable searches and seizures.

On December 16, 2015, the Los Angeles Times published an editorial entitled “Sobriety tests and the Constitution.” The article can be found here:

http://www.latimes.com/opinion/editorials/la-ed-1216-drunk-driving-20151216-story.html

The editorial was partly in response to the United States Supreme Court’s decision to decide whether people can be criminally punished for refusing a post-DUI arrest chemical test absent a warrant.

The author’s stance is clear when they say, “It seems clear that it’s wrong to criminalize the refusal to submit to a test for which police haven’t obtained a warrant. Not only do such laws punish suspects for asserting their rights under the 4^th Amendment; they also effectively provide an end run around the court’s 2013 decision [to require law enforcement to obtain a warrant prior to a forcible blood withdrawal].”

I wholeheartedly agree.

On December 18, 2015, the Los Angeles Times published responses to the December 16^th editorial in a section entitled “Readers React – The risk of giving more rights to drunk driving suspects.”  The responses can be found here:

http://www.latimes.com/opinion/readersreact/la-le-1218-friday-dui-checkpoints-20151218-story.html

In the first of two responses, a retired deputy district attorney for Santa Barbara County wrote, “Let drunk-driving suspects refuse a mandatory biological sample (such as the option of breath or blood in California) without consequences, and watch alcohol-related roadway deaths spiral upward. Why? Without the objective and usually conclusive evidence of a breath or blood sample available for trial, prosecutors will be left with largely subjective evidence. That enables defense attorneys to endlessly second-guess officers’ observations. This will leave legions of drivers undeterred by the perceived legal consequences of alcohol-impaired driving.”

Another response, in part, says, “Your defense of individual rights as they relate to prosecuting suspected drunk drivers goes too far. Police personnel have to do their job, and a drunk driver endangering people’s lives on a road needs to be punished, end of story.”

Plain and simple, the 4^th Amendment was included in the Bill of Rights to protect the people from unreasonable and warrantless governmental searches and seizures of places and things where there existed a reasonable expectation of privacy.

Nowhere do we have a higher expectation of privacy than with our bodies. Consequently, nowhere does the 4^th Amendment become as important as it does when it comes to searches of our bodies.

Just as the 5^th Amendment requires that people cannot be punished for asserting their right to remain silent, so too can they not be punished for asserting their right against a search of their body without a warrant.

Requiring law enforcement to obtain a warrant prior to subjecting a person to a chemical test, which is a search for 4^th Amendment purposes, will not leave prosecutors without “objective and usually conclusive evidence of a breath or blood sample” nor will “prosecutor be left with largely subjective evidence,” as the first response asserts. All it is doing is requiring that law enforcement play by the rules before getting what they want. Play by the rules (i.e. the Constitution), and get the evidence needed to legally prosecute drunk drivers. Stop looking for shortcuts and prosecute drunk drivers within the parameters of the Constitution.

Yes, police personnel “have to do their jobs,” but, again, they must do it lawfully. And the law requires that they obtain a warrant before searching.

I agree with the notion that “A drunk driver endangering people’s lives on a road needs to be punished.” But this statement has nothing to do with refusing a warrantless chemical test.  A person cannot be punished before they are found guilty beyond a reasonable doubt of drunk driving. At the time a person submits to a chemical test, they have not been found guilty of anything.

Furthermore, they most certainly cannot be punished for doing something that the Constitution of the United States absolutely gives them a right to do.

California DUI law requires that a person’s blood alcohol content be at a 0.08 percent or higher at the time they were driving. However when a person drinks, their blood alcohol content is either rising or falling. This means that, at the time the driver was actually driving, his or her blood alcohol content could have been lower than the chemical test reading.

When a person drinks, alcohol enters the blood stream after it is absorbed through the walls of the stomach and the small intestine. This process is called absorption and during this time, the person’s blood alcohol content will continue to rise. When the person stops drinking, absorption stops and a person’s blood alcohol content peaks. After the person’s blood alcohol content peaks because they have stopped drinking, it then begins to fall.

If we were to chart a person’s blood alcohol content as they drink, stop drinking, and begin sobering up, we would see a lopsided bell curve, rising sharply and falling gradually. The more alcoholic drinks are and the faster someone drinks them, the quicker the blood alcohol content rises.

A person’s BAC can be determined in several ways. The first is with a preliminary alcohol test (also known as a “PAS” test) which is a pre-arrest breathalyzer. The PAS test is a field sobriety test is not mandatory. The chemical test, on the other hand, is mandatory and can be either a blood test or a breath test after a person has been lawfully arrested for a California DUI.

If only one test is done and only one BAC level determined, we’ll only where on the curve the person was at the time they took the test. In other words, there’s no way to determine whether the person’s blood alcohol content was rising or falling.

When there are two BAC readings at two different times, however, we can determine whether a person’s BAC is rising or falling because one reading will be higher than the other.

Take, for example, a person who is pulled over at midnight for drunk driving. Following the stop at around 12:20am, the officer does a PAS test. The PAS test indicates that the driver’s BAC is 0.09 percent. Because the driver is over the legal limit of 0.08 percent, the driver is arrested on suspicion of a California DUI. Following the arrest, the driver provides a blood test for the mandatory chemical test. The blood test is performed at 12:45am and the results show a blood alcohol content of 0.14 percent.

This is a rise of 0.05 percent in the 25 minutes between the PAS test and the blood test. Therefore, if you to track the BAC level backwards in time to the last point the person was driving at midnight, it is possible that the driver’s blood alcohol content was as low as 0.05 percent.

Conversely, it is also possible that the later BAC reading is higher than the earlier reading which would indicate that the driver’s blood alcohol content was falling.  Therefore, unfortunately, it is also possible that it was much higher at the time they were driving.

While this may serve as a defense to California Vehicle Code section 23152(b) – driving with a 0.08 percent blood alcohol content or higher – it may not serve as a defense to California Vehicle Code section 23152(a). If a person “drives under the influence,” they can still be convicted of a California DUI under California Vehicle Code section 23152(a). To prove that a person is “driving under the influence,” the prosecution typically uses the officer’s observations of poor performance of field sobriety tests, poor driving, and the “objective symptoms of intoxication.”

If the prosecution, however, cannot prove that a person was under the influence, it may be possible to they were under the legal limit of 0.08 percent at the time they were driving using the rising blood alcohol defense.  

One of the biggest areas of confusion when it comes to a California DUI is the chemical test. More specifically, one of the most asked questions regarding the chemical test is whether a person should submit to a breath or a blood test.

Before I get into whether a breath test or a blood test is better, let me start off by saying that, yes, California law requires that someone who has been arrested for a California DUI submit to a chemical test. Any test requested by an officer prior to arrest, including field sobriety tests and a pre-arrest breathalyzer (called a “PAS” test), is optional. And I would never suggest submitting to them. Why give the officers any more reason to arrest you when you don’t have to?

Once a person is lawfully arrested for a California DUI, however, they must submit to a chemical test under California’s “Implied Consent” law which can either be a breath or a blood test.

Ok, so now on to the question of whether a person should submit to a breath test or a blood test after they’ve been lawfully arrested. Unfortunately, like many questions dealing with the law, the answer is: it depends.

The blood test is far more accurate than the breath test and much less likely than a breathalyzer to produce a false reading. Also, when law enforcement draws blood from a DUI suspect, they are required by law to preserve a sample of the blood for the defense. This means that the defense attorney can request that a portion of the blood be sent to an independent analyst for re-testing. This is called a “blood split” and is used to contradict the results of the state blood test results or possibly to show contamination of the blood sample.

If a person knows that they are under the legal limit and a blood test is likely to show that they are under the legal limit, a blood test might be the better option because it is more accurate. On the other hand, for the same reason, the blood test may not be the best option for someone who will likely test over the legal limit.

The breath test is far less reliable than the blood test and can be inaccurate for a number of reasons. Without addressing all of the problems with breathalyzers here, I’ll just point you to Lawrence Taylor’s post:

https://www.duiblog.com/2014/09/09/are-breathalyzers-accurate/

In fact, it is not uncommon for a breathalyzer to provide a false positive result for someone who is actually under the legal limit.

While the general accuracy of breathalyzers cannot be legally challenged as a whole, a skilled California DUI defense attorney can challenge the reliability of the particular breathalyzer that was used in a DUI arrest.

If a person knows that they are likely to be above a 0.08 percent blood alcohol content, the breathalyzer is likely the better option because it is easier to refute the results.

So to answer the question of whether a breath or a blood test is the better chemical test, it really does depend. It depends on whether the person believes they are actually over or under the legal limit. If you believe that you are under the legal limit, the blood test is the better option because the accuracy of the blood test will show that you are, in fact, under the legal limit. On the other hand, if you believe that you are over the legal limit, the breath test is the better option because it is easier to refute the results.