Should You Take a Breath Test or Blood Test?

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One of the most important questions to ask your DUI defense attorney is this: Should I take the Breathalyzer test? Should I take the blood test? This question is critical, because if you refuse the test, you may not be able to get a limited driver's license for driving to work. You could lose your license for a year or longer.
I am DUI defense lawyer Blackie Burak. I have been defending clients against DUI charges for nearly 40 years. I use this experience and my detailed knowledge of current California drunk driving laws to develop aggressive and effective cases. I represent people throughout northern and central California, and can use my pilot's license and my V-tail Bonanza to come to you.
If you have been stopped or arrested for DUI / DWI, contact an attorney right away to learn about your best course of action. Call my Walnut Creek law office toll free at 1-866-BLCKDUI for a free consultation.


Based on my years of experience as a DUI defense lawyer, I advise people that it doesn't pay to refuse the test. You have the right to refuse, but there are consequences to doing so. This area of law is in a state of flux. There have been some recent cases regarding the implied consent law and the necessity of the police to get a warrant before administering a blood or breath test. At present, if you refuse to take a test, DMV will probably take your license for a year. This is a hard suspension ­ i.e., no restricted license. However, more and more the courts are requiring that the arresting officer obtain a warrant ­ even under the implied consent law. If the officer says something like “you must choose a test” or “if you refuse, your license will be suspended” then choose a test. I generally recommend you choose the blood test.

If the officer fails to get a warrant ­ even after you agree to take a test ­it is more and more likely that the test result will be excluded from evidence.


If you just left a bar and had a drink right before leaving, it may be best to take the blood test because that last drink has not yet been absorbed completely into the blood. A breath test taken shortly after drinking can seriously overstate your actual blood alcohol level. But if you are arrested a couple of hours or more after your last drink, the breath test may be slightly lower than a blood test taken at the same time. So deciding which test to take usually depends on when you had your last drink. In most cases you will have no idea of whether you are still absorbing alcohol, so I recommend the blood test. This may seem odd, but my experience is the blood test is actually easier to challenge in court than the breath test.


The tests are not nearly as foolproof as the police want jurors to believe. My knowledge of the technical aspects of blood and breath tests is but one example of the way I am able to neutralize evidence based on blood and breath tests. There a several ways to challenge both the blood and breath tests. For example, every lab in California, including the DOJ labs, use outmoded, obsolete methods of blood testing.


Regardless of what field sobriety tests you took or didn't take, if you have been arrested for DUI / DWI, contact my law office right away. I can help ensure that you get the best defense available in central and northern California. Call toll free at 1-866-BLCKDUI.