Breath Test

Breath Or Blood Test Results Below A .08%, But Still Charged With DUI?

April 8, 2012 | The Law Offices of Susan L. Hartman

8 Ball.jpg San 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.

Breath Test Then Admonishment, Should I Take The Blood Test Too?

March 31, 2012 | The Law Offices of Susan L. Hartman

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.

BAC: What Is It And How Does It Affect My DUI Case?

October 7, 2011 | The Law Offices of Susan L. Hartman

.08.jpg BAC 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.

PAS Test: What Is It And Am I Required To Take It?

September 1, 2011 | The Law Offices of Susan L. Hartman

A PAS test is an acronym for preliminary alcohol screening test. This is a breath test that is conducted at the roadside before a person is arrested for drunk driving. The test is done on a portable breath analyzer or breathalyzer. The most common portable breathalyzer used by San Diego law enforcement today is the Alco-Sensor IV, which is manufactured by Intoximeters, Inc.In California, if a driver is stopped by law enforcement and they are suspected of being under the influence, the officer may ask the driver to take a PAS test. The PAS test is considered an investigation tool, as it is supposed to measure the blood alcohol content, or BAC, of the subject.

Under California Vehicle Code section 23612(i), the officer is required to advise you that you have the right to refuse such a test, unless you are under 21 or you are on probation for DUI.

This test can be unreliable and inaccurate. It is not recommended that you do the PAS test or any other field sobriety tests, as the officer will use these tests to bolster their argument that you are impaired for purposes of driving, giving them probable cause to arrest you for DUI.

However, If you agree to provide a breath sample using the PAS test and you blow below the legal limit of .08 BAC, you may still be arrested. The officer will often use other observations and assessments to conclude you are drunk driving.

If you are arrested for driving under the influence and you already provided a breath test using the PAS test, your obligation to submit a breath, blood, or urine test after a DUI arrest has not been completed. California Vehicle Code section 23612(a), is an implied consent law. This means if you drive a vehicle and you are lawfully arrested for driving under the influence, you are deemed to have given your consent to chemical testing. If you do not voluntarily provide a sample, you will be forced to.

Defective Breathalyzers, DUI Cases Could Be Dismissed Or Overturned

April 22, 2011 | The Law Offices of Susan L. Hartman

The Alco-Sensor V Breathalyzer, used by law enforcement as a preliminary alcohol screening test (PAS), was recently purchased and put into use in every law enforcement agency in Ventura County to replace the older Alco-Sensor IV model. However, the blood alcohol results from the newer model have been found to be erratic in tests taken from January 20th through March 31, 2011, and some devices have other defects as well.

All of these devices have been sent back to the manufacturer for further testing. Meanwhile, all Ventura County law enforcement agencies have resumed its use of the Alco-Sensor IV device.

So far, 294 alleged drunk driving cases have been identified where the Alco-Sensor V was used. There have been 157 guilty or no contest pleas, leaving 137 cases still pending.

Prosecutors claim they will not oppose a motion to withdraw a guilty or no contest plea if the Alco-Sensor V was “substantially relied upon” to prove the charges. Cases that are still pending will be dropped if this machine was the only method used to determine the blood alcohol content (BAC).

Often the PAS test is only one piece of evidence that is used to determine if you are under the influence for purposes of driving. Often, prosecutors will not just throw out cases they believe they can still prove with the mandatory breath or blood test that is taken after the arrest. You should fight any DUI charges that involve a PAS test using the defective Alco-Sensor V machine. Motions can be filed that may result in your case being reduced or even dismissed!

Stopped For Drunk Driving, Breath Or Blood Test Results Over .08%, Plead Guilty?

February 22, 2011 | The Law Offices of Susan L. Hartman

not guilty.jpg You 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.

DMV’s License Suspension Set Aside, Breath Test Inaccurate

February 15, 2011 | The Law Offices of Susan L. Hartman

The California Department of Motor Vehicles (DMV) suspended Derek Brenner’s license after he gave a breath sample that read .08 percent blood alcohol concentration (BAC). However, Mr. Brenner challenged this ruling and won, according to the San Francisco Chronicle. cartoon.dmv.jpg

During the DMV Hearing, he presented a forensic toxicologist’s report that claimed the breath testing device consistently overstated blood-alcohol levels by 0.002 percent. Since the test result is only given in two decimal places, the actual result could have been has high as .089 percent, but as low as .078 percent, which is below the .08 BAC limit.

A Superior Court judge set the suspension aside. That ruling was upheld by the First District Court of Appeal in San Francisco in October 2010, and the State Supreme Court denied review of the DMV’s appeal. The court stated the DMV must show that Brenner’s blood alcohol was over the legal limit of .08 percent. Once he presented evidence that the readings were too high, “The burden shifted back to the department to prove the test was nonetheless reliable.”

This ruling opens the door to future challenges by drivers facing a license suspension due to a DUI where a breath sample was taken and the result of such test is at or near the legal limit of .08 percent.

If you have been charged with a DUI, you only have 10 days from the date of the arrest to contact the DMV to schedule a hearing to challenge the suspension of your license.

If you are over the age of 21 and this is your first DUI, or your first one within the past 10 years, the DMV will automatically suspended your license for 4 months after the 30 day temporary license expires. Once you have completed a 30 day hard suspension, you may be eligible for a 5 month restricted license once you provide the DMV with proof of insurance, proof of enrollment in an approved alcohol treatment program, and you pay all the DMV fees. This restricted license will allow you to drive to, from, and during work and to and from the alcohol treatment program.

If this is a second or subsequent DUI within the past 10 years, there is a one year license suspension and you are not eligible for the restricted license.

If you refused to take a blood alcohol test, the consequences are greater. There is a one year license suspension for the first offense; a two year revocation for the second; and, a three year revocation for three or more refusals within a ten year period. If you refused to take a BAC test, you are not eligible for a restricted license, even if it is your first offense.

California Court of Appeal Rules Evidence of a Refusal to Submit to a PAS Test is Not Admissible.

November 22, 2010 | The Law Offices of Susan L. Hartman

pas.officer.jpg The California Court of Appeal ruled in People v. Jackson that the trial court incorrectly allowed evidence in at trial that the defendant refused to take a preliminary alcohol screening test (PAS).

Defendant was arrested and was subsequently on trial for driving under the influence, DUI, in violation of Vehicle Code Section 23152 (a) & (b) . An officer was allowed to testify that the defendant refused to take the PAS test, even though he did agree to perform all the other field sobriety tests (FST’s).

After a conviction, the defendant appealed, claiming that the officer’s statements about his refusal should not have been admitted. The defendant cited Vehicle Code Section 23612(i), which states, “If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. The person’s obligation to submit to a blood, breath, or urine test, as required by this section, for the purpose of determining the alcohol or drug content of that person’s blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the person’s right to refuse to take the preliminary alcohol screening test.”

In the appeal, the Respondent claimed that the trial court correctly admitted the evidence because the PAS test is simply another FST. When the defendant refused to submit a sample, he was demonstrating consciousness of guilt.

The Court of Appeal agreed with the Appellant “because it is logically consistent with the clear intent of the statute [VC 23612] and serves to protect the statutory right defined therein.” However, in this case, it was found to be harmless error and the Appellant’s conviction stood.