The Los Angeles DUI Law Blog

California's Implied Consent: Blood or Breath?

Brother Pele's in the back, sweet Zina's in the front
Cruisin' down the freeway in the hot, hot sun
Suddenly red-blue lights flash us from behind
Loud voice booming, "Please step out onto the line "

Yep, you're getting pulled over, maybe for a DUI. Earlier this evening, you had a drink or two or six, but you totally thought you were good to drive. Now that you've made the bad decision, what's the best way to mitigate the damage?

Under California’s Implied Consent law, if the officer smells alcohol on your breath or has some other reason to believe that you are under the influence, he can ask you to take a blood or breath test to determine your blood alcohol concentration.

And by ask, we mean tell, as the law states that you have already consented to the test by having a driver’s license. Refusal means you lose your license, and you still might get convicted anyway.

Which test you choose is actually a pretty complicated decision, based on a lot of factors. One of them is how long its been since you drank and the rate of alcohol consumption. Here are some issues to consider:

Falling BAC

If you were in the process of “sobering-up” and it’s been a while since you stopped drinking, you should consider the blood test. If it takes the officer some time to get you to a sterile facility and to locate a nurse to draw your blood, this could work in your favor.

Rising BAC

However, if you just slammed five shots on the way out the door, thinking you’d be home in two minutes, you could consider the breath test. Since the test doesn’t take long to administer, it will probably be over before your stomach digests and absorbs all of that Guinness, Baileys, and Jameson that is floating around in your gut.

Other Factors

There are also other considerations to weigh. Blood tests are much more accurate, which is a mixed blessing. If you are above the legal limit, a blood test is hard to challenge, absent error on the part of the lab. Then again, the chance of a false positive is also reduced.

Conversely, Breathalyzers are more prone to error than blood tests. They give less accurate readings and are easier, though still quite difficult, to attack in court. An improper calibration, a pattern of errors, or a borderline reading could all help your case.

Even should you dodge the BAC bullet, it doesn’t mean you won’t be prosecuted. California allows the prosecutor to charge “under the influence” as an alternative to “0.08 or higher.” Both carry the same penalty. So, if you chose blood, and were measured at a 0.07, the prosecutor might still press forward anyway. However, your chances of a favorable plea bargain just might increase.

Oh, and there is one sure fire way to beat a DUI rap: Don’t drink and drive.

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