.08 OR GREATER BLOOD ALCOHOL CONTENT = ARREST
California Vehicle Code Section 23152(b) makes it unlawful to drive a motor vehicle with a blood alcohol concentration (BAC) of .08 or greater. If your BAC is .08 or greater, there is a "presumption" that your ability to drive is impaired. If you have been arrested for driving under the influence (DUI), it is best to have a good DUI attorney in your corner. CONTACT our office today for a free and confidential consultation.
Even if you are under the per se legal limit of .08 BAC you can be charged with DUI if your ability to drive was impaired. Vehicle Code Section 23152(a) says that it is "unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle." The amount of alcohol required for your ability to drive to become impaired depends on a number of factors, including your weight, gender, how fast the drinks were consumed, how much food is in your stomach, and how much time has passed since your last drink.
EVIDENCE AGAINST YOU IN DUI CASES
The manner of driving is the first piece of evidence that will be used against a person charged with driving under the influence. A driver that was involved in an accident or was observed driving erratically will likely face the accusation that this is evidence of impairment.
Field Sobriety Tests
If a driver is suspected of being DUI, police officers will ask him or her to participate in Field Sobriety Tests (FST) to determine if the driver is impaired. There are several Standardized FST's that are used during a DUI investigation, the most common being the Horizontal Gaze Nystagmus (HGN), the Walk-and-Turn (WAT), and the One-Leg Stand (OLS) tests. Visit our Field Sobriety Tests page for a detailed discussion of FST's.
Preliminary Alcohol Screening Test
Police officers who detain an individual suspected of driving under the influence of alcohol in Los Angeles will also frequently use a Preliminary Alcohol Screening (PAS) test, also considered a FST, to measure a person's blood alcohol content. The PAS is a portable breathalyzer machine that police officers carry with them in their vehicles. If your breath test is .08 or greater, you will likely be immediately placed under arrest for DUI. Even if your breath test result is less than .08, if you did poorly on the FST's, were driving erratically, or were involved in an accident, you can still be arrested and charged with DUI. Vehicle Code Section 23152(a) allows prosecutors to charge you with DUI even if your BAC is under .08.
Choice Between Breath or Blood Test
A driver arrested for DUI involving alcohol is required to submit to either a breath or blood test to measure their BAC. This is mandated by California's "implied consent law," set forth in Vehicle Code Section 23612. This is different from the PAS test, which a driver may lawfully decline to take unless they are already on probation for a prior DUI.
If a driver does not agree to take the breath or blood test after they are arrested, it will be deemed a “refusal” which will result in a minimum one year drivers' license suspension, and longer if the driver has prior DUI convictions. The law applies differently to drivers under the age of 21 who are also required to submit to the PAS test. Failure of drivers under 21 to submit to the PAS test will also be deemed a "refusal" and result in an automatic drivers' license suspension.
PROBLEMS WITH BREATH AND BLOOD TESTING
There are frequent problems with the tests used in measuring a person's BAC. California law requires that proper procedures must be followed.
For example, a breath sample should only be taken after the individual has been observed for at least 15 minutes prior to the test. Breath test machines must be properly maintained with regular accuracy checks and calibration. Failure to do so will result in the breath test machines giving inaccurate test results. Proper records must be kept if the test results are to be used against you by the prosecution in Court. Both PAS devices and the evidentiary breath testing equipment should be approved by the National Highway Traffic Safety Administration and appear on its approved alcohol screening devices list.
Similarly, proper blood draw procedures must be followed if a blood test is given and the blood vial must be handled properly during the testing or the BAC result will not be accurate. Protocols must be followed with respect to the handling of the blood sample following the draw and before it is tested. Failure to do so will also result in an erroneous BAC test result.
A good DUI lawyer will have an expert witness as a member of the DUI defense team. The expert's job, among other things, is to review the blood analysis records and, when applicable, point out any contamination which may have occurred in the sample. Contamination of a blood sample usually results in the test result being higher than what it actually is. The difference in the result can be the difference in a person being found guilty or not guilty of DUI. Contamination of the blood sample can also have an impact on the penalty that the prosecution seeks against a person who is convicted of DUI. For example, due to a client's blood result being a .21, the prosecutor's plea bargain offer on a first time DUI offense demanded that the client enroll in a 9 month alcohol program and complete 10 days of Cal Trans. However, Berglund Law Office, P.C.'s forensic scientist was able to review the blood analysis records and conclude that the .21 result was in error. The actual result was less than half that amount. The prosecutor agreed to a 3 month alcohol program, the mandatory minimum for a 1st offense DUI, and no Cal Trans.
ALCOHOL IS EVERYWHERE IN LOS ANGELES
The majority of Americans drink alcohol. A large portion of this group has, at some point, consumed alcohol and then drove. Many do so on a regular basis. Alcohol is everywhere in our culture, especially in a big city like Los Angeles. Thousands of bars and restaurants throughout our city serve alcoholic drinks. Many people in Los Angeles are not able to walk to where they need to go, so they drive. It only takes a few drinks at dinner to put a lot of people at or above the .08 legal limit. Many people do not realize that they have a BAC of .08 or higher. DUI's can happen to anyone who drinks alcohol and then drives.
Blood Alcohol Testing is Not Perfect
Many potential problems exist with breath and blood test results. For example, the test results may not accurately reflect the driver's true BAC level at the time of driving. Breath testing equipment that is not properly maintained and calibrated will yield inaccurate results. Blood samples that have not been kept at the proper temperature and have allowed fermentation to occur prior to testing will not reflect an accurate result.
CONSULTATION WITH AN EXPERIENCED DUI LAWYER
If you have been arrested for DUI in Los Angeles, speak to an experienced DUI lawyer today and call Berglund Law Office, P.C. at (877) 203-4377 or fill out the form on our CONTACT page for a free and confidential consultation. DUI Lawyer Robert D. Berglund will personally return your phone call. Do not delay in contacting an experienced Los Angeles DUI Lawyer. If you were arrested for DUI in Los Angeles and your driver's license was confiscated, you only have 10 days to request a DMV hearing to prevent an automatic driver's license suspension. CONTACT our office today.