Breath and Blood Tests

For law enforcement agencies and prosecuting attorneys in California to secure a DUI conviction against you, they often use your breath or blood test results. These tests are usually undertaken to determine your blood alcohol concentration. If the concentration of alcohol in your system is more than 0.8%, you can be charged for a DUI offense.

In most DUI cases in California, the results of blood or breath tests provide the foundation for the prosecutor’s case against you. Failing a blood or breath test doesn’t automatically make you a criminal. Failing the tests similarly doesn’t mean that you will or should be convicted of a DUI offense.

How are Breath and Blood Tests Administered? 

Breath tests are given by arresting officers, and entail having drivers suspected of driving under influence blowing into a device known as a breathalyzer. This device examines breath samples to determine the level of alcohol concentration in the body. Typically, breath tests are less consistent when compared to blood tests since different issues can affect the results of a test.

If you want to contest the results of a breathalyzer test, your attorney can argue about the unreliableness of the device. If for instance the device wasn’t calibrated at the time when a breath test was been taken, your DUI attorney can use this to argue the case to your advantage.

On the other hand, blood tests are undertaken by using a blood sample to determine your blood alcohol concentration. The results of blood tests are usually more accurate than those of a breath test. Nonetheless, inconsistencies can still arise thus leading to errors. These inconsistencies can arise from issues such as the test being administered by an individual who isn’t properly trained, or the entire procedure being abused. A DUI attorney can use such inconsistencies as grounds to have a DUI case dismissed.

Things to Keep in Mind During Blood and Breath Tests

It is in your best interests to understand the following pertinent facts if an arresting officer pulls you over with the intention of undertaking a breath or blood test on you.

  • A 20-minute time lapse must pass before a breath test is administered. During this period, the arresting officer or whoever is required to administer the test should observe you to ensure that you do not belch, regurgitate, or consume anything. If any of these happen and the test proceeds anyway, the reliability of the results will be compromised.
  • Even though breath test results can’t be retested, your breathalyzer records can be used to challenge the results. These records may include details pertaining to the type of device used to administer the test, and even the frequency of calibration. If the device used is found to be unapproved, the breathalyzer test results can easily be thrown into question and dismissed altogether.
  • Blood tests must be administered by qualified blood draw technicians. This may mean either traveling to a nearby hospital or the police station so that a phlebotomist draws the sample.

California’s Implied Consent Law

California’s implied consent law requires those who are arrested for DUI to take a test, which will ascertain whether they are intoxicated or not. However, one thing that you might not know is the fact that you are allowed to choose to either have a blood test or breathe test administered to you if you are under a DUI accusation.

Even though the decision ultimate rests on you, it is always advisable to contact a DUI attorney so that the drawbacks of each test are explained to you. Generally, blood tests are preferred since they help law enforcement officers to determine whether you are under the influence of other drugs, something that breath tests do not disclose.

Benefits and Drawbacks of Breath Tests

Breath tests are so popular in DUI cases to the extent of most offenders think there are other alternatives. These tests are usually less accurate compared to blood tests. If you have been subjected to a breath test and the results reveal that your blood alcohol level is near the legal limit, an attorney can argue to have charges against you dropped. In this case, the margin of error will be high and therefore, it cannot prove your guilt.

Breath tests do not allow the arresting officer to store a sample. Therefore, your attorney cannot retest the sample in an independent laboratory to discover mistakes that were made during testing or handling procedures. Your attorney can seek to have a breath test nullified if the breathalyzer wasn’t properly calibrated, and the sample was kept in a contaminated room.

Diet sodas, vomiting, hand sanitizers and even low-carb diets have an effect of the results of a breath test. Therefore, it is advisable to note down everything that happened prior to and after taking a breathalyzer test. This will make it easier for your lawyer to pinpoint anything that might have given you an exaggeratedly high result, and use it to challenge the DUI conviction against you.

Pros and Cons of Blood Tests

Blood tests are more accurate then breathalyzer tests. Therefore, it is more difficult to challenge the results of a blood test. Nonetheless, a blood test should only be a preferable option if you are sure that you haven’t exceeded the legal limit. Typically, blood tests take longer to administer and therefore, your blood alcohol concentration can go down while you wait to get tested.

In as much as it is harder for your attorney to challenge the results of blood test, your blood sample will be stored. Therefore, your DUI attorney can always seek to have the sample retested in case there are any lingering questions pertaining to the accuracy of the initial results.

Several procedures ought to be followed for the results of a blood test to be considered accurate. This includes the use of proper testing methods, proper sample collection, storage, and transportation. If those who perform the blood test don’t do it correctly, or the wrong tubes are used, your lawyer can seek to have the results of the test invalidated.

Do You Have Any Rights When it Comes to Blood and Breath Tests?

Any DUI defense attorney will tell you that it doesn’t pay to decline a blood or breath test. In as much as you have the right to decline a test, this comes with consequences. If you refuse to take a blood or breath test in California, you are likely to be barred from driving for a year. In recent years, California courts have been requiring arresting officers to obtain warranties to undertake blood and breath tests even under the state’s implied consent law.

If the arresting officer fails to obtain a warrant even after you have agreed to undergo a test, chances are high that the results of the test will be disqualified from evidence that will be submitted in court. You may also be wondering whether the results of blood and breath tests are really accurate. The truth of the matter is that these results are not always as foolproof as arresting officers want judges to believe. This is why DUI defense attorneys always seek to neutralize evidence submitted before courts.

Common DUI Defenses

Even if the results of a blood or alcohol test administered to you indicate that you were over the legal limit, you can still have the case thrown out especially if you choose a reliable DUI defense lawyer. Common DUI defenses used by lawyers in California include challenging the tests.

Breath and blood tests can be thrown off by numerous substances including mouthwash and even prescription medicines. A DUI attorney can seek to have your blood sample retested at an independent lab to contest the initial results.

Your lawyer can also challenge the legality of DUI charges brought against you especially if state-required protocol and procedures were not adhered to during arrest and subsequent tests. This can go a long way in invalidating whatever evidence that is submitted before jurors. If you were pulled over without probable cause or tested without being read the Miranda rights, your attorney can also seek to have the case quashed.

The most significant thing that you ought to do after being pulled over on suspicion of driving under influence is to consult a DUI defense attorney. The Law Offices of Ross Howell Sobel specialize in complex DUI cases. The firm boasts of a proven track record for successfully getting clients off the hook as far as DUI convictions are concerned.

Contacting a DUI Lawyer with Experience Dealing with Breath and Blood Tests Near Me

Ross H. Sobel is the lead attorney at the firm, and he endeavors to utilize his deep legal understanding and decades of experience to offer incredible representation to clients. The firm has successfully handled more than 6,400 cases related to DUI offenses. If you are facing a DUI charge in Sherman Oaks and surrounding areas, do not hesitate to get in touch DUI Attorney via 818-582-2350.


top 10 attorney attorney and practice magazines 2020

Top Tier Lawyers


The information on this website is for advertisement and informational purposes only. The facts of every case are unique and nothing on this page or on this website should be taken as legal advice for any individual case or situation. The information on this website is not intended to create an attorney-client relationship and viewing of this information does not create an attorney-client relationship.