SmartLaw: Attorney and Lawyer Referral Service. Divorce, bankruptcy, criminal, accident, business
SmartLaw.org
Home
 
The Los Angeles County Bar Association Lawyer Referral and Information Service, the largest and oldest such service in the United States, has hundreds of pre-screened, qualified and insured lawyers in the Los Angeles area who can help you with your legal issues. Contact us now and our courteous, professionally trained staff will help you connect you with the right lawyer. The LRIS is a nonprofit public service of LACBA.


# 418 Tests for drunk drivers

mp3 #418 Chemical Tests for Drunk Drivers (mp3 file)


Driving while under the influence of alcohol or drugs is a crime, and it is one of the most serious traffic violations you can commit. If you are found guilty of so-called drunk-driving, you are subject to heavy misdemeanor penalties including mandatory jail sentences. Increased jail sentences are imposed for second and third offenses during a seven year period. The fourth offense within seven years may be prosecuted as a felony for which you could be sentenced to state prison for three years. You may also be charged with felony drunk driving if you were punished as a felony one time during the past 10 years for felony drunk driving, or felony drunk driving with injury, or gross vehicular manslaughter while intoxicated.

If you drive a motor vehicle anywhere in the state of California, you are subject to the "implied consent" law of the California vehicle code. This means that the law deems you to have automatically agreed, just by driving, to take a blood, breath, or urine test, if you are arrested, when the arresting officer believes you are under the influence of alcohol or drugs. If you are under age 21, the law states that you have also given implied consent to a preliminary alcohol screening test, in addition to the other chemical tests.

These tests are to determine your blood alcohol level, to find out how much alcohol is in your bloodstream within three hours after you have been driving. The tests show whether you were driving while under the influence of alcohol, and the test results are admissible in court if you go to trial. It is a criminal offense in California to drive a motor vehicle with a blood alcohol level of point zero eight percent or higher. If you are under the age of 21, the blood alcohol level is point zero one percent or higher.

If you refuse to take the chemical test when requested by an officer, you will be subject to a suspension--or taking away--of your driver's license for a period of one year on a first offense, or revoked for two years if you were previously convicted of reckless driving or driving under the influence within seven years of the date of refusal, or revoked for three years if you were previously convicted of two or more offenses within seven years of the date of refusal. If you drive while your license is suspended or revoked for refusal of a chemical test, you would be committing a separate criminal offense for which you could be sentenced to jail. You do have the right to have your own doctor or other medical personnel give you another test at the time of arrest at your own expense, if such personnel are available. However, you do not have the right to have an attorney present when you select or take a chemical test requested by a police officer. You do have the right to have your blood or urine test sample re-checked later by a medical laboratory of your choice and at your expense, because your blood or urine samples are kept by police departments. Breath samples are not retained at the time you blow into the testing machine, and therefore cannot be re-checked later by an independent medical laboratory. If you choose a breath test, however, you do have a right to a second test of either your blood or urine to be taken and preserved at no cost to you for possible future reanalysis.

You can choose which of the three tests you want to take, but if the test you choose can't be performed--for example, if you can't give two separate samples of urine within thirty-minutes--you must immediately choose another test to take, or you'll be charged with failure to take or complete the test, and will have your license suspended for one year. A person who chooses to submit to a breath test may also be requested to submit to a blood or urine test if the officer has reasonable cause to believe that the person was driving under the influence and that the officer has a clear indication that a blood or urine test will reveal the evidence. What if you are unconscious, or otherwise unable to refuse to take a chemical test? The law permits the police to arrange for a chemical test anyway, usually by medical personnel withdrawing a blood sample. Also, if the police suspect use of drugs other than alcohol, you may be required to choose between a blood or urine test even if you already agreed to a breath test.

What if you are afflicted with hemophilia, or a heart condition which requires the use of anticoagulant medication? In such cases, you are exempted from the blood test requirement, and you should choose a breath or urine test.

A preliminary alcohol screening breath test is a field sobriety test, used by a police officer as a further investigative tool. This preliminary test does not take the place of a breath, blood, or urine test that is done later, after arrest, at the police station. However, if you are under age 21, the preliminary alcohol screening test result may be used to prove that your blood alcohol level is 0.01% or higher.

Remember that you are required by law to take the test. You may choose the type of test you want to take, if that type of test is available. The results will be used against you in a court of law. If you refuse to submit to a chemical test, your refusal will be used as evidence against you in a court of law, if you are tried on charges of driving under the influence of alcohol or with a blood alcohol level of point zero eight percent or higher. If you have refused to take the test, your license will be suspended or revoked even if you are later found not guilty of the "driving while under the influence" charge.

Even though an attorney can't be with you at the time of the test or in any way prevent you from having to take it, you may consult an attorney immediately after taking the chemical test if you feel your rights have been violated in any way.

Back to Top

() -

 
 

Find a lawyer outside of California.