In the San Francisco Bay Area, which is where I practice, the officers who arrest someone for DUI can give them a choice between taking a breath or blood test. If someone decides that they do not want to do either, the officer is supposed to admonish that person and tell them that there is implied consent. When you signed up for your driver’s license, you consented to, if arrested for a DUI, to take a breath or blood test. So, if you decide that you don’t want to do either, that is known as refusal. If you refuse the test, they can do a forced blood draw.
In California, if they are going to do a forced blood draw, they would need to get a warrant. Typically, if you continue to refuse the breath or blood test, the officers will contact the judge on duty to get a verbal permission. Then, the judge will sign something. They don’t always have the form signed before the blood draw is done, but as long as it’s verbal and they get the signature later, that generally works. As long as the boxes are checked, everything is complied with, tell the judge why they are requesting a warrant for a blood draw, and what the probable cause is, they can force a blood draw.
I don’t ever recall a judge refusing a warrant for a blood draw. However, if it’s not a refusal, they don’t need to get that warrant if you consent to it. What’s interesting is that I’ve seen officers, who are not properly trained or unsure, still get a warrant in Marin County and in some other places in the San Francisco Bay Area. There still is a lot of confusion going on in this area. But when you run into something that procedurally happens that it isn’t supposed to, it can help your case. That is one of the many reasons why it’s so important to get an experienced attorney to help fight your case. Your attorney can try to make this situation go away or get the penalty reduced as much as possible.
Is It Possible For My DUI Attorney To Have My Blood Tested By A Separate Facility In A DUI Case?
It is absolutely possible for your DUI attorney to have your blood test by a separate facility in a DUI case. However, retesting blood is something I don’t usually recommend. For example, if you did a preliminary alcohol breath test and it came back at a 0.15%, and then you did another blood test after your arrest and it came back at 0.14%, that may not help your case. In most cases, if we retest that blood, they are not looking at what your drinking pattern is, assuming someone is being truthful. Consequently, retesting the blood is just going to confirm influence, and the DA is going to get that result. That 0.14% gives me a lot less to argue if we go into a jury trial situation because now they have the breath test, the blood test, and a confirming blood test.
However, if you are right at the legal limit of 0.08%, that may be a situation in which the DA could drop, reduce the charges, or dismiss the case if we do a retest and it comes back under a 0.08%. That may also help with the DMV in some cases. Not a lot of cases that I see are 0.08%, but some are. In those cases, sometimes we would want to retest the blood. There are other arguments that may work better than retesting the blood.
The retest would be done at a separate facility. I would send it out to a separate lab that would do their own test and give us a written report. Many years ago, when I started practicing DUI law, I did a lot more retests. Over time, I realized that too many came back confirming the results. So, I found other ways to challenge those cases. I’d find what might have gone wrong. Contamination and things like that are better defenses than a retest, which just solidifies the prosecution’s case. But yes, we send them out to labs in different parts of the Bay Area or further than that. The ones that are borderline, we hope that they come back underneath the limit because that can help. We can have someone from that lab come in and testify if the case goes to trial about the results that they received.
On the other hand, when the prosecution’s expert or phlebotomist who originally tested the blood comes in, I ask them: What happens when someone opens the vial to get the blood out to retest it? What happens as the air escapes? Air that escapes with alcohol in it will be lower because that air release will lower the alcohol level of the blood that is in the tube. If that’s the situation, that could be something that could sway a jury against us. So, unless it’s a completely separate vial that has not been opened, it can be problematic.
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