If you have ever been pulled over by the police or stopped at a DUI checkpoint in San Diego and suspected of driving under the influence (DUI), you may have been asked to take a breathalyzer test, also known as a preliminary alcohol screening (PAS) test. The purpose of a breathalyzer test (and the field sobriety tests that typically accompany it) is to help the officer who stopped you decide whether to arrest you for DUI and in most cases, you have the right to refuse the pre-arrest breathalyzer test without penalty, though many people assume the test is mandatory. Keep in mind that there is a big difference between a pre-arrest breath test and a post-arrest breath test, and understanding this difference and your rights under California DUI law is the key to keeping yourself out of jail. For more information about San Diego breathalyzer tests and DUI charges, contact our knowledgeable DUI defense lawyers at Sevens Legal, APC today.
Experienced San Diego Breathalyzer Test Lawyer
Driving under the influence of alcohol or drugs, or with a blood alcohol concentration (BAC) of 0.08% or higher is against the law in San Diego, but it is important to remember that being arrested for DUI is not the same thing as a conviction. Just because you failed a roadside breathalyzer test or a post-arrest breath test does not automatically mean you will be convicted of DUI and sent to jail. When it comes to defending yourself against DUI charges in San Diego
, there is no substitute for years of experience, and that is what you get when you hire our DUI defense lawyers at Sevens Legal. Our attorneys know that breathalyzer tests are notoriously inaccurate, and unlike blood samples, breath samples are not preserved, which means there is no way to verify the accuracy of the results by conducting independent testing at a later date. We are intimately familiar with the intricacies of San Diego DUI law and we will do everything in our power to help you get the best possible outcome in your drunk driving case.
Breathalyzer Tests in San Diego
The state of California has an “implied consent” law in place which presumes that any person who drives a motor vehicle has given his or her consent to chemical testing for the purposes of determining BAC if lawfully arrested for DUI. The legal limit for BAC in California is 0.08%, and state DUI laws make it a crime to operate a motor vehicle under the influence of alcohol or drugs or with a BAC of 0.08% or higher. One of the most common tools for the police to measure BAC is a hand-held device known as a breathalyzer. When a person suspected of DUI blows into the device, the breathalyzer measures the alcohol content in the person’s breath, which is then used to calculate BAC.
Breathalyzer tests administered before a DUI arrest are not compulsory, which means you don’t have to consent to a breathalyzer after being pulled over or stopped at a DUI checkpoint. However, if the police suspect you of driving under the influence, they will want as much evidence of your alleged intoxication as possible and may not make it readily apparent that taking a breathalyzer test is a choice you have the right to decline. If you do submit to the breathalyzer test, the results may be used to establish probable cause for your DUI arrest. That being said, refusing the test is not a guarantee that you won’t be arrested. If the officer has other reason to believe you are intoxicated or impaired, you could still be arrested for DUI and required to submit to a post-arrest DUI breath or blood test.
How Are the Pre-Arrest and the Post-Arrest Breath Test Different?
Pre-Arrest Breath Test
The very first step in a San Diego DUI investigation is being stopped by the police, which typically occurs either at a DUI checkpoint or during a routine traffic stop. If the officer who stopped you has reasonable cause to believe you are under the influence of alcohol or drugs, he or she may ask you to submit to a roadside breathalyzer test and/or perform a series of field sobriety tests to determine your level of intoxication or impairment, if any, which is the next step in the DUI investigation. Under California law, you do not have the right to consult an attorney prior to these tests, but you do have the right to decline the tests without legal penalty, so long as you are not under the age of 21 or on probation for a DUI offense. A breathalyzer test is the most common test the police use to identify drunk drivers, but it is important to know that unless you have been arrested, you are not required by law to consent to a breathalyzer test in San Diego.
There are two important exceptions to this law: drivers under the age of 21 and drivers on probation. California has a “zero tolerance” law for minors who drink and drive, under Vehicle Code § 23136 VC, and if you are an underage driver suspected of DUI, you do not have the option of refusing a pre-arrest breathalyzer test. Additionally, if you take the breathalyzer test and it indicates any measurable amount of alcohol in your system, the result of the test can be used against you in the suspension of your driver’s license. If you are on probation for a previous DUI offense, Vehicle Code § 23154(a) VC prohibits you from driving with a BAC of 0.01% or higher. If you are suspected of DUI and you refuse to take a pre-arrest breathalyzer test, your driver’s license may be revoked for one to three years.
Post-Arrest Breath Test
Once you have been arrested for DUI and taken to the police station for booking, there is another type of breath test you may be asked to submit to, and this test you are required by law to take, even if you have already taken a PAS breathalyzer test. So long as your DUI arrest was lawful, you are required to submit to a DUI breath or blood test (or in rare cases, a urine test) under California’s implied consent law. If you refuse, you can face enhanced penalties for refusing the chemical test and the arresting officer is required by law to advise you of the consequences of a chemical test refusal. Typically, individuals arrested for DUI in San Diego have the right to choose a breath or blood test to determine their level of intoxication, if any. However, if the police suspect drug use and there is a clear indication that a blood test would show the presence of drugs in your system, you may be required to take a blood test.
Penalties for a Breath Test Refusal
Legally, you cannot be forced to submit to a DUI breath or blood test after your DUI arrest. However, if you refuse a post-arrest chemical test in San Diego, the Department of Motor Vehicles (DMV) will take immediate administrative action against you, suspending your driver’s license for one year for a first DUI offense, or revoking your license for two years for a second DUI offense occurring within ten years, and for three years for a third or subsequent offense occurring within ten years. Additionally, if you are found guilty of the DUI at trial, your chemical test refusal can be used to enhance the criminal penalties imposed by the court
If you take the DUI breath test after your drunk driving arrest and your BAC is 0.08% or higher, the DMV will suspend your license for a period of four months for a first DUI offense, one year for a second offense occurring within ten years, and one year for a third or subsequent offense occurring within ten years, pending the outcome of your administrative DUI DMV hearing.
DUI Defense in San Diego
Being arrested for DUI in San Diego may feel like the end of the world, but it is important to remember that no matter how dire your situation may seem, you still have rights. Just like in any other criminal case, you are presumed innocent unless proven guilty and the burden of proof in a San Diego DUI case lies with the prosecution. That means, in order to convict you of DUI, the prosecutor assigned to your case must prove each element of the crime “beyond a reasonable doubt,” or to the extent that there can be no other reasonable explanation for the evidence presented at trial, except that you are guilty of the crime. To find you guilty of simple misdemeanor DUI,
for example, the prosecutor must establish the following:
- You drove a motor vehicle, and
- At the time you drove, you were under the influence of alcohol, or had a BAC of 0.08% or higher.
If you took a pre-arrest or post-arrest breathalyzer test and your BAC was above the legal limit, the breathalyzer results can be used to establish the second element of the crime. If you were lawfully arrested for DUI and you refused the DUI breath or blood test, you have the right to hire an attorney to represent you at your DMV hearing, the sole purpose of which is to determine whether your license will be suspended as a result of your arrest. During the DMV hearing, the hearing officer must prove the following, in order to suspend your driver’s license:
- You were driving the vehicle,
- You were lawfully arrested for DUI, and
- You had a BAC 0.08% or higher.
If you have been accused of refusing the DUI breath or blood test, the DMV must also prove that:
- You were notified that your driving privileges would be suspended or revoked if you refused the chemical test, and
- You refused to submit to the chemical test after being asked.
Best Defense Strategies for a Failed Breathalyzer Test
If you have been arrested for DUI in San Diego, you need an experienced DUI defense attorney on your side who can help you navigate California’s complicated DUI laws and present a strong defense in your case. Some effective DUI defense strategies for a failed breathalyzer test include the following:
- The breathalyzer test results were inaccurate
- Something other than alcohol contributed to the high BAC results
- The breath sample was contaminated
- The officer administering the breathalyzer did not follow proper procedure
- A medical condition or high-protein/low-carb diet contributed to the breathalyzer test results
- Rising blood alcohol resulted in an artificially high BAC result
- The breathalyzer test picked up residual mouth alcohol
Similar to a criminal DUI trial, your attorney can also present certain defenses during the administrative DMV hearing to challenge the state’s evidence and help you retain your driving privileges. The following are some common defense strategies that may be used in DUI cases where a post-arrest chemical test was allegedly refused:
- The DUI arrest was unlawful
- The arresting officer did not properly advise you of the consequences of refusing the test
- You did not refuse the chemical test
- Your test refusal resulted from an injury unrelated to your alleged alcohol or drug use
- You were unable to hear or comprehend the officer advising you of the consequences of refusing the test and could not give meaningful consent
Contacting a San Diego DUI Attorney for Help
Being stopped by the police for driving under the influence can be frightening and intimidating, even if you haven’t been drinking. California DUI laws are complicated and constantly changing, and it can be difficult to know your rights under the law when you are suspected of DUI. For instance, are you required to take a breathalyzer test in San Diego, or do you have the right to refuse the test? If you refuse the breathalyzer test, does that give the police reason to believe you are guilty? Does refusing a breathalyzer test mean you will automatically be arrested for DUI? Does it mean the police don’t have enough cause to arrest you? And can your refusal be used against you if you are arrested and ultimately charged with DUI? These are all questions that a knowledgeable DUI defense attorney can answer for you based on your specific circumstances. Contact our experienced and competent defense lawyers at Sevens Legal today to schedule a free DUI consultation.