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Do People Have A Right To Consult With An Attorney About A Chemical Test?

They cannot consult with an attorney at that very moment because this happens right at a free initial arrest process. You have been arrested for a DUI and you are required to take a test and in the middle of the arrest process, the courts have constantly upheld that someone does not have the right to counsel and ask questions about whether or not they should take the test or whether which test they should take. Once you have been arrested and transported to jail, people will be allowed to make a call. Sometimes they can, sometimes they cannot, but at that point, it is usually too late. Everything that the officers wanted to gather has been gathered and talking to a lawyer is not going to help.

How Long Do People Typically Have To Make A Decision Regarding The Chemical Test?

Not very long. Sometimes, it is pretty instantaneous. Sometimes it involves a conversation going back and forth. I have seen officers who understand someone’s stress, confusion and state of intoxication from drugs or alcohol. They help people and work with people. There are a lot of officers out there who do a very good job in making sure that someone does not end up with a refusal or where a less tolerant officer could put down a refusal. I have seen some quiet and very patient police officers who will listen to audio and watch video and be patient when the DUI defendant can be very verbally combative or intoxicated.

They are saving a lot of people from the consequences that are much more severe. Not all officers go the extra mile. But some just do so. When that does happen I just let my clients know that they were lucky that the officer was reasonable. But typically an officer will give someone a chance and repeat the admonition at least once or twice. Sometimes, what they will do is another officer on the scene will try to explain it a little differently. It is just a big department and they have more people to process. They spend less time in giving someone a chance to choose their test when that shift can be very busy.

Are The Breathalyzers and Blood Tests Actually Videotaped In California?

The breath test on the side of the road may be videotaped if the officer has a body cam and it is still running through the DUI stop. Sometimes the Dash cam in CHPD or other local agencies may capture a breath test, but typically it will be an officer’s body camera and sometimes they hold the result out so that the camera can see it and every once in a while you can see the numbers on a preliminary alcohol screen. That is not an evidentiary breath test. After an arrest is made, and after the breath test is given, then there is another breath or blood test that is taken which has been consented to by the person. If it is a breath test, sometimes they will do another test on the side of the road or often when they take someone in, they will do it at the station. Most of the time the test is administered on the side of the road in most cases.

Typically you will not see the video of that, I ask for it all the time though. They are not usually videotaping when someone is given a breath test at the station. A blood test is usually done at the station or at the hospital or in some counties, like in San Matteo County they have first chance which is a place where they take people instead of taking them to jail. They do a blood or breath test there rather than in front of others, it is a more secure location. I have never seen any video from that location, and typically at a hospital, the only video would be if an officer had a body camera on at the time the test was administered, which occasionally, we will see. I am starting to see that more in local police agencies; the body cameras of CHP usually will not. In Marin County we see some body cams from the local agencies, and in the Santa Fe police department, we see it.

When they bring someone to the hospital for a blood draw there may be a video. However when they bring people to jail, typically we do not see the blood draw. I have seen video from the Napa County agencies, and I have seen some in Marin County, but it is very rare. We should be seeing them because the method by which the blood is drawn is important and is one of the defenses that we can use in a DUI case. I would really like to see blood draws because we cannot just observe, but can control things. For example, how long does a phlebotomist or a nurse wait? Did they clean the site where the needle was going to go into someone’s arm? Have they waited a full thirty seconds which is required? Has someone left the tourniquet on for more than a minute?

We can also see if the area where the needle is going to enter into a person’s arm has been contaminated between the time that the area is cleaned and the time that the needle penetrates the arm. There are different things that can contaminate the site. It could be touched by gloves that were not properly kept clean and that includes a number of other things, even a dirty tourniquet. The tourniquets are used over and over again. If the ends of the tourniquet are hanging over the area that was just cleaned before the needle is inserted, that could contaminate the area of the skin that is punctured by a needle and it can lead to additional alcohol from contamination. Having these cameras to see blood draws is very important, not just to see if they captured someone refusing, but to see how the blood draw was conducted and if it was done in a proper manner.

Is It Possible To Contest An Allegation Of Refusal And Be Successful?

I have had a number of cases where I have made allegations of refusal go away especially when we have been able to avoid the one year DMV suspension for a refusal. It depends on each case. I have a lot of different types of examples from someone actually being too intoxicated to be able to refuse. I had that case and luckily we had police reports follow that with the video which was very clear that the person was too intoxicated. I had the officers put in the report that they felt like the person was unable to maintain a proper conversation or they could not understand what was going on and yet they put it down as a refusal. We have had that type of situation reversed and the refusal gone away.

But there are a lot of other situations where somebody is not properly admonished about a refusal. You are supposed to be informed about the consequences of a refusal, and it is not always read. Sometimes we can show it is not, sometimes there are inconsistencies in reports that show that we cannot really tell what happened and if it was done properly. Sometimes that can make a refusal go away. The refusal cases are the hardest cases to win, so when someone tells me that they refused to take a test, it is not what I want to hear, but we play the hand we are dealt and we fight every case.

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Aaron Bortel
With 30 years of specialized experience in DUI defense, Attorney Aaron Bortel is a dedicated advocate for those facing DUI charges in the Bay Area. Committed to helping clients avoid jail, save their driver’s licenses and jobs, and prevent permanent criminal records, he combines deep legal expertise with genuine care for his client's welfare. Trust in a lawyer who not only defends but truly supports you through challenging times.

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