More than 140,000 California motorists are charged each year with driving under the influence (DUI). Arrests for DUI are based predominantly on the test results from portable breathalyzer devices. What is the law regarding portable breathalyzers and breathalyzer tests in California? Can a DUI attorney in Orange County help?
WHAT IS IMPLIED CONSENT?
“Implied consent” is California law. It means that motorists in this state must take a blood, breath, or urine test – but only after an arrest for DUI – when a law enforcement officer reasonably believes that the motorist is too intoxicated to drive safely.
When you apply for a California driver’s license, by law, you are “implying” your consent to a breath, blood, or urine test if you’re arrested for DUI. If the license was not issued in California, simply driving on a California street implies a driver’s consent to testing after a DUI arrest.
When a California police officer stops a motorist to conduct a DUI investigation, the motorist may be asked to blow into a portable, hand-held breathalyzer device for “preliminary alcohol screening” (PAS).
WHO IS REQUIRED TO TAKE A PAS TEST?
California requires law enforcement officers to tell drivers that a PAS test is not required and that (with two exceptions) they have the right to decline a PAS test. If you have not been formally placed under arrest, you are not required to submit to a PAS test, with these two exceptions:
- Drivers under the age of 21 who refuse to submit to a PAS test may lose their driving privileges for one year.
- If a motorist is serving probation for a previous driving under the influence conviction, the refusal to submit to a PAS test is a violation of probation.
SHOULD YOU OR SHOULDN’T YOU TAKE A PAS TEST?
DUI defense attorneys in California typically recommend that if you are age 21 or above, and if you are not serving DUI probation, you should decline – politely – to take a PAS test. You have that right.
However, drivers in this state should know that an arrest for driving under the influence can be made with or without a PAS test. If a motorist refuses a PAS test, he or she may be formally placed under arrest, and the motorist is then legally required to submit to the test.
In fact, a police officer may consider a motorist’s refusal to be tested as evidence of the motorist’s guilt, and the officer can use that refusal as the basis for an arrest.
HOW DO PORTABLE BREATHALYZERS WORK?
Most of the alcohol that someone consumes moves into that person’s bloodstream. A lesser amount enters the lungs and then the breath. A portable breathalyzer measures the alcohol molecules in a subject’s breath to determine how much alcohol is in the bloodstream.
In other words, portable breathalyzer tests do not directly measure the alcohol level in the blood. Portable breathalyzers merely estimate that level based on the alcohol in a subject’s breath. A blood test is a more reliable measurement of someone’s blood alcohol content (BAC) level.
ARE PORTABLE BREATHALYZERS ACCURATE?
In southern California, if you are charged with driving under the influence on the basis of a PAS test, you must reach out at once to an experienced Orange County DUI attorney for the legal advice and representation that you are very much going to need.
The breathalyzer exams that are administered after DUI arrests in California are governed by a number of standards and regulations. The devices must be routinely maintained, and officers who administer the tests must have formal training and must adhere to rigorous test procedures.
PAS tests conducted with portable breathalyzers by patrol officers at traffic stops are not governed by these rules.
HOW CAN PORTABLE BREATHALYZERS BE UNRELIABLE?
One defense strategy that your attorney may employ is to cast doubt on the reliability of the PAS test results. Portable breathalyzers may return inaccurate results for a variety of reasons:
- Portable breathalyzers can mistake a number of chemical compounds for alcohol – chemical compounds that can be found in food (especially breads and nuts), mouthwash, toothpaste, breath fresheners, perfumes and colognes, and several types of medicines.
- Portable breathalyzers may also return false results for motorists suffering with hypoglycemia, diabetes, or GERD (gastroesophageal reflux disease).
- Additionally, some portable breathalyzers are sensitive to “RFI” – radio frequency interference – which throws off the readings, and RFI is always in the air when walkie-talkies and radios are being used by the police.
HOW MIGHT A DUI ATTORNEY DEFEND YOU?
In most situations, however, a portable breathalyzer test, in fact, will give the police a roughly accurate idea of a motorist’s intoxication level, but portable breathalyzers are not reliable. And a “good” accuracy rate simply is not good enough when your future is at stake.
If you charged with driving under the influence anywhere in southern California, challenging the accuracy of the DUI test results – whether you take a breath test or a blood or urine test – is one of the strategies that a DUI law firm may use in your defense.
A good DUI defense lawyer may cast enough doubt on the DUI test readings to convince jurors that a prosecutor has failed to prove the case against you beyond a reasonable doubt.
IF YOU’RE STOPPED BY THE POLICE, WHAT SHOULD YOU DO?
So what should you do if you are pulled over in traffic by a police officer while you are driving here in southern California?
- Be as friendly and cooperative as you can.
- Keep your hands where the officer can see them.
- Produce your license, registration, and proof of insurance if you’re asked for them.
After you show an officer these documents, you’re not required to answer questions, and you should exercise your right to remain silent. Smile, be polite, and say something like, “I would prefer to exercise my right to remain silent.”
WHAT CAN BE THE CONSEQUENCES OF A DUI CONVICTION?
You can’t take chances with your future. The penalties for a driving under the influence conviction in California can be quite harsh, and a DUI conviction could put your employment at risk – or even put you in jail.
If you are charged with driving under the influence anywhere in southern California, you must be advised and represented by an experienced Orange County DUI defense lawyer. Your choice of an attorney can make all the difference, and your future may depend on it.