ANSWERS ABOUT THE ALCOHOL SCREENING TEST
If you are stopped because a police officer suspected that you are driving while under the influence of alcohol, you will be asked to get out of the car. One reason for this is to determine whether there is the smell of alcohol on your breath. The second step is usually to ask you to do balance and coordination tests: stand on one foot, cross your arms a certain way or walk a straight line. The third step is usually to get out a handheld alcohol screening test device and ask you to blow into it.
As a highly experienced DUI / DWI defense attorney, I have the background and the knowledge necessary to defend your rights and ensure that any alcohol screening tests were administered according to the law. I am attorney Blackie Burak and have been defending people against drunk driving charges for nearly 40 years. I know the questions to ask at a DMV hearing or at a jury trial to ensure that you are being correctly charged. Contact my law office toll free at 1-866-BLCKDUI for a free consultation.
DO I HAVE A CHOICE ABOUT THE PRELIMINARY BREATHALYZER?
Following the so-called Field Sobriety Tests, the officer will probably want you to blow into a Preliminary Alcohol Sensor (PAS) devise. California police officers are required by law to inform you that blowing into the handheld Breathalyzer is purely voluntary. Most often, they do not tell you it's voluntary and just order you to “blow into this.” My usual advice is to refuse to take this test. This is because the accuracy of the device is questionable and it is programmed to not print out any result. Even if you have passed the balance tests, you will be arrested if the PAS devise reads over or near a .08%. The decision of whether or not to take this test requires a knowledge of your body's absorption of alcohol. This is something most people don't know, so I advise not taking this test. Courteously refuse and offer to take the evidential blood or breath test at the police station. Be advised, if you refuse the PAS test, you will probably be arrested, but my guess is that you would be arrested anyway, simply on the basis of the odor of alcohol.
SHOULD I TAKE THE BLOOD OR BREATH TESTS AT THE POLICE STATION?
The officer may not show you the result of the PAS field test, but they will probably arrest you and take your driver's license anyway. If you are arrested, you will be asked to take a breath or blood alcohol test at the police station or hospital. Do not refuse to take the blood or breath tests. If you do, you could lose your license for a year, even if you are ultimately found not guilty of the DUI charge. In my experience, it does not help your case to refuse to take the blood or breath test. DMV will suspend your license for a year or more, if you have prior DUI's. If the case goes to trial, the DA is entitled to a jury instruction that your refusal shows a consciousness of guilt. The real question is which test to take.
DUI lawyers have different opinions on which test to take. Generally speaking, my opinion is the length of time that has passed since your last drink will dictate which test to choose. If your last drink was within an hour of the arrest, you should usually take to blood test. If it has been two or more hours since your last drink, the breath test may be better. This opinion is based on the average alcohol absorption time. The breath test can seriously overstate your blood alcohol level if you are still absorbing alcohol when you blow into the machine.
If you have been stopped for DUI / DWI, contact my Walnut Creek law office right away if you can. If I become your lawyer, I can help ensure that the evidence used against you accurately reflects the charges. Call toll free at 1-866-BLCKDUI. And if you are eventually arrested, it's even more important to call me. Don't delay your defense.