Articles Posted in Blood Test

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8 Ball.jpgSan Diego law enforcement pulled you over on suspicion of drunk driving. They conducted a DUI investigation and then arrested you for driving under the influence. The police should have advised you that you must submit to a breath or a blood test per the implied consent law.

If your test came back below a .08 percent blood-alcohol content, or BAC, assuming there were no drugs in your system at the time, you may believe that you will not be charged with driving under the influence. However, the prosecutor may still file charges against you.

Under California law, it is unlawful to drive a vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. This is commonly called the “a” count because the California Penal Code Section for this charge is 23152(a).
However, people are often more familiar with the “b” count under California Vehicle Code Section 23152. This section states, “It is unlawful for any person who has a 0.08 percent or more, by weight, of alcohol in her or her blood to drive a vehicle.”

Under the California Jury Instructions, which lay out exactly what the prosecuting agency must prove, #2110 states: A person is under the influence if, as a result of drinking an alcoholic beverage, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.

Therefore, the exact blood-alcohol content is irrelevant. As long as the prosecutor believes he or she can prove that the driver’s mental or physical abilities were impaired, and the driver was not able to drive the vehicle with the caution of a sober person, using ordinary care, under similar circumstances, the prosecutor could charge you with drunk driving. And, if you choose not to plead guilty to the DUI and instead have a trial, the jury can convict you of a DUI even though your BAC was under the legal limit of a .08%.

So if you are charged with drunk driving, you owe it to yourself to hire an exclusively DUI defense firm that will aggressively defend your case. Do not just plead guilty whether your blood alcohol content (BAC) was below or above the legal limit of .08%. There may still be defenses in your case that can lead to reduced charges with less punishment, or even a dismissal!

The above blog article is by no means all-inclusive and is not legal advice. Laws may change and may not apply to your case. For the latest information or to get legal advice, speak to a DUI attorney in your area.

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Drunk driving investigations often include the officer asking the suspect if they will submit a breath test in the field. This test is called a PAS, or preliminary alcohol screening, test which measures your blood-alcohol content. It is another field sobriety test, or FST, that the officer uses as a tool to help determine if the driver is under the influence of alcohol.

If you are not on probation for a prior DUI matter, this test is optional. If you are on DUI probation, a standard term of probation is for the probationer to submit to any test at the request of a peace officer for detection of alcohol and/or drugs. If you refuse such a test, you will be in violation of your probation terms.

It is not advisable for anyone who is not on DUI probation to submit to the PAS test or any other FST’s. The officer is simply building a case against you.

Once an officer has probable cause to arrest you for drunk driving, you will be asked to submit to a breath, blood, or urine test. Under California law, (Vehicle Code Section 23612), licensed drivers have given “implied consent” to provide a chemical test if lawfully arrested. Therefore, you must submit to one of the tests, otherwise it will be considered a refusal and the officer will forcibly take a blood sample from you. There are additional penalties with the California Department of Motor Vehicles and in the California courts for refusing such a test.

In San Diego County, if you choose to do the breath test, it is often done on an Intoxilyzer machine.

After the test is completed, the officer must give you an admonishment called a Trombetta Admonishment. This advises the suspect that their breath sample is not retained and therefore cannot be retested. The defendant is then offered an additional blood test which is stored at the crime lab. The defense can later retest that sample at an independent lab to test its accuracy. Taking that second test could backfire because there are now two separate tests that may confirm the same result. It is best to just choose one test. Then the defense can attack the testing process, procedures, and results of the one chosen.

The above blog article is by no means all-inclusive and is not legal advice. Laws may change and may not apply to your case. For the latest information or to get legal advice, speak to a DUI attorney in your area.

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.08.jpgBAC is an acronym that stands for blood alcohol content or blood alcohol concentration. It is the percentage of alcohol that is in your blood at the time of the test. According to the National Highway Traffic Safety Administration, the higher your BAC, the more impaired you are.

In California, it is illegal to drive a vehicle while under the influence of any alcoholic beverage or drug, or a combination of both. Further, it is unlawful to drive a vehicle with a blood alcohol concentration at or above a .08 percent. (See California Vehicle Code Sections 23152(a) & (b).)

Blood alcohol concentration is at issue in almost every drunk driving case involving alcohol. Within the vehicle code there is a rebuttable presumption. If the driver took a chemical test within three hours of driving, and the result of that test is a .08 percent or more, it is presumed the person had a BAC at or above a .08 at the time of driving. Because this is a rebuttable presumption, the defense can attack this at trial during cross examination of the prosecution’s experts or with a defense expert.

Even if the driver did not exhibit any signs of impairment, having a BAC of a .08 or more at the time of driving is enough for the state to file charges against you.

If your BAC is under a .08, you can still be charged with driving under the influence if you exhibited signs of impairment while driving or if the officer determined that you failed the field sobriety tests (SFST’s).

Blood alcohol content is usually tested by breath, blood, or urine samples. The officer must have probable cause to arrest you before administering such tests. (Note: The breath test mentioned here is not the PAS, or preliminary alcohol screening test, used in the field.) As a licensed driver, you have given implied consent to such tests; this means, if you are arrested for DUI, you must give one of the samples.

A breath test is most favored by law enforcement because it gives the result quickly and no sample is saved for retesting. The breath test machine is very sensitive and many things may skew the results. For instance, the machine may not have been working properly when the test was completed or mouth alcohol may have been present in the sample. Both of these can artificially elevate the results.

The blood test is done by a qualified medical professional and the results are not immediately available. This is often considered the most accurate test. However, a byproduct of blood breaking down is alcohol. Therefore, if the preservative is not thoroughly mixed through the vial of blood, the test results will be inaccurate with the result showing an inflated number.

If you are arrested for drunk driving, you owe it to yourself to hire an exclusively DUI defense firm that is familiar with all the possible defenses in your case. The BAC result is only an estimate, and it alone does not accurately determine if you are under the influence for purposes of driving. It is a tool used by the prosecutor to determine how to charge and pursue your case. A good defense looks at all the facts, not just the test result provided by the state.

Do not just plead guilty because your BAC was a .08 percent or higher. There may still be defenses in your case that can lead to reduced charges with less punishment, or even a dismissal!

The above blog entry is by no means all-inclusive and is not intended to be legal advice. To get legal advice on your particular matter, speak to a DUI attorney.

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forced blood draw.jpgThe Florida Fifth District Court of Appeal heard arguments this week on whether law enforcement can forcibly draw blood from certain DUI suspects. Currently, Florida law allows forced blood draws without a search warrant in suspected drunk driving cases involving death or serious injury.

In this case, no injury or death was involved when the defendant was charged with driving under the influence. The defendant failed to keep his car in a single lane so he was stopped by Melbourne police. Law enforcement did obtain a search warrant for the blood sample.

Circuit Judge Maxwell did not allow the blood evidence into court; thereby prompting this appeal by the state. This issue has not come before any appeal court in Florida before and the ruling will impact 13 counties and become a benchmark for other judicial circuit courts in Florida.

In California, there is an implied consent law for chemical testing, Vehicle Code Section 23612. Under this statute, “any 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 purposes of determining the alcoholic content of his or her blood if lawfully arrested for an alleged DUI.”

Once arrested for drunk driving, the person has a choice between a blood or breath test. If a person refuses to give either sample, and they are eventually convicted of drunk driving, their penalty will be increased according to Vehicle Code Section 23577.

Can an officer force you to take a blood test if you refused to give a sample? Yes, if the following conditions are met (People v. Sugarman): 1.) The circumstances require prompt testing; 2.) The arresting officer has reasonable cause to believe the arrestee is intoxicated; and, 3.) The test is conducted in a medically approved manner incident to a lawful arrest.

So how do you defend a drunk driving case that involves a refusal? You can challenge the lawfulness of the arrest itself. The officer must have had probable cause to stop and arrest you. Also, the prosecution must prove you were the driver of the car and you were in fact under the influence. Further, the officer may not have told you that you are obligated to submit to a chemical test or the admonition was confusing.

Your drunk driving charges may be dismissed if any of the defenses above fit your case. (Note, this is not an exhaustive list of defenses.) Contact an exclusively DUI defense firm if you want more information on how to defend you matter.

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not guilty.jpgYou are pulled over by a police officer suspected of driving under the influence. You take a breath or blood test. The result — .12 (or even higher). You are over the legal limit of .08% blood alcohol content (BAC) and you are arrested and charged with Vehicle Code Section 23152, driving under the influence of alcohol.

You ask yourself, “Should I just plead guilty? Do I need to hire an attorney?” You should never plead guilty at the arraignment stage. And yes, you need to hire a skilled, exclusively DUI defense attorney.

It is never recommended that a person plead guilty at the arraignment. At this early stage, the discovery documents are not available to the defendant or the defendant’s attorney. DUI defenses become apparent during the discovery phase of the case.

Even though the chemical test results showed you were over the legal limit, you may still have defenses in your case. Before you can even consider your breath or blood test results, you have to evaluate the prosecution’s entire case against you.

A skilled trial attorney will review all the discovery documents, evaluate the prosecutor’s case, and advise you on any defenses. Appropriate motions may be filed, which can result in your matter being dismissed or reduced.

Since a DUI conviction will be on your driving record for 10 years, it will be used as a prior to enhance the penalty of any other drunk driving cases you may pick up during that time period. Therefore, it is important to aggressively fight to get the case reduced or dismissed.

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