Orange County DUI Breath and Blood Tests

When an officer administers a breath test analysis after a DUI traffic stop, the test provides a result that measures your blood alcohol concentration (BAC). A breath test measures the amount of alcohol within air exhaled, but it does not measure the amount of alcohol in your blood, leaving the testing process susceptible to inaccurate results.

Factors that can have an impact on BAC levels taken from a breathalyzer are:

• Your body temperature or the rate of your respiration while being tested.
• The amount of time that it took between the traffic stop and the administering of the test.
• Existence of substances in the mouth that contain alcohol, such as mouthwash.
• Having stomach fluid residue in your mouth due to vomiting or regurgitation.
• The breathalyzer was calibrated poorly or malfunctioned.
• The test itself was administered improperly.
• The breath test analyzes your BAC with a mathematical ratio based on an “average” person. The mathematical ratio can be an inaccurate reading of your BAC. Additionally, the BAC level can be affected by the factors mentioned above that may leave the test results susceptible to being challenged by one of our attorneys.

Since breathalyzer results have been proven to be inaccurate, law enforcement officers may require that you take the test a few times to get an accurate result. Your license may be suspended if you do not comply with the officer’s request to take the test multiple times.

Our defense lawyers at the Orange County DUI Attorney Law Firm have experience in successfully challenging improper breathalyzer processes and can help you if you have been charged with driving under the influence.

After a DUI arrest, a blood test is the most accurate test for measuring a person’s blood alcohol concentration, or drugs in an individual’s system. However, like the breath test, a blood test is also susceptible to errors during the collection, testing, and analyzing process. Sometimes your blood samples are not tested quickly enough or are not preserved properly. This results in the blood samples decomposing or coagulating and the samples may provide inaccurate readings. If a sample is stored, recorded, or tested improperly, the results from testing the samples could be compromised.

Results from a blood test are not always accurate. Our attorneys have the experience to determine when improper processes have affected your blood test results, making your tests not credible. For a FREE consultation call the Orange County DUI Law Firm and allow our attorneys to review your case. Our attorneys are devoted criminal defense lawyers that want to help you fight the DUI charges against you.

DUI attorneys are commonly asked: “What test should I take? The blood test or breath test?”

The answer is: there is no definitive answer. There are pros and cons to both tests and it is difficult to know what test will provide a more beneficial result.

However, it is commonly agreed upon that the blood test is more accurate than the breath test. Although the blood test is more accurate, it is easier to cross-check. Since the blood test analyzes a blood sample, your attorney can cross-check the results by using another lab to test the sample and make sure the results are accurate.

Alternatively, if you choose to take the breath test, the breath sample does not get preserved. Thus, because no breath sample is preserved there is no easy way to cross-check the sample and cannot make sure the result was accurate. Even so, the breath tests are still seen to be significantly less accurate than the blood test results and provide false positives more often.

Another common question DUI attorneys receive is: “Can I refuse a breath test?” The answer depends when the breath test is going to be given and if you are prepared to deal with the consequences that come with refusing the test.

It is important to know that a DUI incident usually involves two different breath tests. The first breath test is what is called “preliminary alcohol screening (“PAS”) test. This test is given to the driver before the driver is arrested and is usually given roadside. After, the driver has been arrested the second breath test is administered. This test is known as the “evidentiary test” and is usually administered at the police station.

In most cases, a person can refuse to take either test. However, the consequences for refusing to take the tests can be severe.

During a DUI incident, the officer will offer you the PAS after the officer has pulled you over. You ARE PERMITTED TO REFUSE the preliminary test, unless one of the following applies to you:

• You are on probation for a prior DUI when the test is offered; or
• You are under he age of 21 when the test is offered.

If one of the aforementioned categories does not apply to you, you can refuse to take the PAS test without any consequences. You are allowed to refuse the PAS test because its purpose is for the officer to determine if the officer has enough cause to arrest you. (Note, that there are other causes other than your BAC that can provide an officer enough cause to find you intoxicated and arrest you.)

Unlike the PAS test, there are consequences to refusing the evidentiary test. You cannot refuse the evidentiary test, even if you chose to take the PAS. Usually, in a DUI case you will have an option to take either a blood or breath test. By refusing to take the evidentiary test can lead to the following consequences:

• A jail sentence that is enhanced to up to 2 days if you are later convicted for DUI; and/or
• A minimum driver’s license suspension of 1 year.

Title 17 regulates the way breath and blood samples are collected and stored. Failure to conform to the Title 17 procedures may end in an inaccurate BAC results, and can make the blood or breath test results inadmissible.

Title 17’s most important rules for administering breath tests are:

• The officer administering the breath test must be trained properly,
• The breathalyzer used must be maintained, tested, and calibrated properly,
• The officer ordering the breath test must watch the individual taking the test for 15 consecutive minutes before administering the test;
• The defendant cannot smoke, eat, drink, or vomit during the 15 minutes
• The officer must collect 2 separate samples that are within .02g/ml apart from each other.

Like breath tests, the collecting and storing of blood test results must adhere to a few guidelines. These guidelines are:

• The technician taking the blood sample must be trained properly;
• The blood sample must be properly stored;
• The equipment for calculating the BAC levels must be calibrated properly;
• Everyone who handles the sample must be recorded;
• The place on your body where the sample is taken from must be sterilized with something other than an alcohol-based product.

As stated above, blood tests are usually more accurate than breath tests. Additionally, the law presumes that any blood samples taken are compliant with Title 17 guidelines for taking and storing samples. The burden of proving that the samples were not taken or stored in compliance with Title 17 lies with the defendant.

Most individuals do not know that a breathalyzer does not directly measure your blood alcohol level. Blood tests are considered more reliable because the test actually measured your blood alcohol. Breath tests, only analyze how much alcohol is in your breath. The test then mathematically converts the results to a proportionate reading of alcohol in your blood.

As previously stated, breath tests can be affected in many ways resulting an inaccurate reading. These test are usually affected by faulty equipment or improper administration.

Title 17 provides how breath test equipment must be calibrated and tested:

• The breath test device must be approved by California;
• Specific records of the device’s maintenance must be kept;
• The device itself must be calibrated every 10 days of 150 uses whichever comes first.

Common ways administration errors occur are:

• Improperly attaching the mouthpiece;
• Failing to make sure the driver’s mouth is empty before administering the test;
• Improperly recording the time the test was given;
• Failing to observe the driver for 15 continuous minutes prior to the test.

• Medical conditions like, gastro intestinal reflux disease, acid reflux, and heartburn;
• Your diet can lead to inaccurate results, for example, low card, or high protein diets.

Refusing to take the blood test is very comparable to refusing the evidentiary breath test after you have been arrested. If you refuse to take the blood test, you are likely to have severe penalties imposed against you. Moreover, with a blood test, the police can choose to get a warrant and force the blood test to occur.

When you choose to get your California driver’s license, you are also consenting to submit to a blood or breath test after a DUI arrest. Thus, when you refuse the blood test, like refusing to take the evidentiary breath test, the following penalties may be imposed on you:

• A jail sentence that is enhanced to up to 2 days if you are later convicted for DUI; and/or
• A minimum driver’s license suspension of 1 year.

Sometimes, the arresting officer will obtain a warrant that forces the blood test to occur. When a warrant is issued, a person can no longer refuse to take the blood test. A warrant authorizes officers to physically restrain you, and forcefully take the blood sample. A warrant can authorize a blood test to be taken, even when you are unconscious.

As previously stated, one of the pros to selecting a blood test, is that the sample taken from you can be re-tested an another lab. The independent law can analyze the sample and check if the original test result was inaccurate, due to the following reasons:

• A mishandled blood sample or vial;
• The blood sample contained an insufficient amount of preservative;
• The sample was contaminated; or
• The sample was stored/ refrigerated improperly.