Los Angeles DUI Lawyer Blog

Articles Posted in Blood Test

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When you have been arrested for suspicion of a Los Angeles DUI, officers will ask you to take a field sobriety test at the scene of the arrest. This test is not mandatory, and is voluntary. This means that you do not have to submit to it, and there are no consequences. However, if you are arrested, you will be required to take one at the station. This test can be a breath test, or a blood test. There used to also be a urine test option but that is no longer the case.

Oftentimes people do not want to take the breath test and opt for the blood test. For example, they may have asthma and are unable to blow hard enough into the breathalyzer machine. If they opt for the blood test, then those results will be provided in two weeks.

However, in certain situations people refuse to take either test. They may have a fear of needles, or they may simply not agree to submit to a test. If you refuse to take either test, it could be categorized as a refusal, and a refusal will be considered an aggravating factor when and if you are sentenced for a DUI. This means that the sentence will be on the higher end of the range, or will have added sentencing because of the refusal or take a test. It is viewed as being uncooperative.

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There are certain legal hurdles a prosecutor must cross in order to successfully prosecute a case. They must prove, beyond a reasonable doubt, using evidence, testimony and other exhibits that a person was:

1)      Driving

2)      Intoxicated at the time.

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When a person has been charged with Driving under the Influence in Los Angeles, it is highly recommended that they seek the help of a Los Angeles DUI Attorney to prepare their arguments and the possible defenses available to them. These strategies and defenses may be factual or legal.

Legal Strategies and Defenses

In order for a person to be convicted of a DUI, they must have been driving at the time of the arrest, and must have been intoxicated while driving. A legal professional will strategically asses the type of instrument used, the method in which the evidence against the client was obtained, and the accuracy of the date collected. These are legal defenses or strategies that are available to the client. Let’s consider an example that covers a few of these strategies.

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California Vehicle Code §23152 makes it unlawful for a driver to be operating a vehicle while under the influence of any alcohol or drugs. The code section used to only include subsections (a) and (b) but as of January 1, 2014, the code section has been revised and additional sections have been added.

Due to recent revisions, it is important that a person who has been charged with a DUI understand the language in the law.

The first part of the Code Section , subdivision(a), reads as follows:

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If you have been arrested for suspicion of a DUI, you still have yet to be found guilty. The process of being found guilty or not guilty of a DUI will occur through the criminal justice system. Either you may plead guilty, or you have the option to stand trial and be found guilty or not guilty by a jury of your peers.

Throughout the process of your criminal case, the Prosecutor will present evidence that they believe proves their case for a DUI. In order for a Prosecutor to find you guilty of a DUI, they must prove that you are guilty of each of the elements of a DUI, beyond a reasonable doubt. The elements include that the person was driving and that the person was intoxicated.

Throughout the process of the case, evidence will be presented by both sides. You also have the right to present evidence. Evidence will include testimony, any blood alcohol tests, officer reports, and any other items that are admissible under the evidence code to either prove or disprove the elements of the case.

The evidence code prevents certain pieces of evidence from being admitted. Additionally, of evidence is not obtained properly, then it may also be excluded. For example, oftentimes blood tests may be excluded. If crucial evidence is successfully excluded, this could lead to the dismissal of your case.

Let’s consider an example:
Donna has been arrested on suspicion of a DUI. During her arrest, she refused to have her blood drawn and did not give her consent. However, officers drew her blood despite this fact.

In accordance, with case law, officers cannot draw your blood without your consent. Doing so is a violation of your fourth amendment rights.

Having an experienced Los Angeles DUI Attorney represent you in court has its benefits. Attorneys know the procedure and what motions need to be filed that will suppress the evidence. One such motion is called a Wilder Motion. A Wilder motion is generally filed by criminal attorneys to request suppression of evidence, however, it does not state any arguments or facts which benefits the attorney’s argument.

If you have been arrested for suspicion of a DUI, it is important to contact a DUI attorney. An attorney will provide you with the advice and guidance that you need. A criminal charge is a serious charge and can lead to long term consequences. Assure that you have the best possible argument in your favor so that the case is dismissed or in the very least, reduced.

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When you have been stopped for a Los Angeles DUI, there are certain things you should and should not do. One of the things a Los Angeles DUI lawyer will advise you on is that it is not always beneficial to you to take the first preliminary alcohol screening test administered at the arrest.

This test, the PAS, is optional, and officers should advise you of that. It is not necessary, and failing to take it will not result in additional consequences if you are arrested for a DUI. The test administered at the station after arrest, however, is necessary and required. Of course, officers may not force you to submit to one and if you fail to do so, you may have additional consequences.

Many of our clients wonder how they can be found guilty if there are absolutely not solid numbers indicating their level of intoxication, i.e, a blood alcohol test. The truth is, that you will still be tried in Court. You will have a trial on the evidence against you and the Prosecution will try to build a case against you through evidence and testimony. The Prosecution must prove beyond a reasonable doubt, that you were drinking and driving.

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A driver must have committed a traffic violation or otherwise for an officer to pull the person over. In order for an officer to request the driver to submit to an alcohol screening test, they must have reasonable suspicion. For example, if a driver is following all traffic safety laws, the officer has no reason to pull the driver over. If the driver exhibits no signs of being under the influence of any substance, including alcohol, and does not admit to having been under the influence, the officer does not have authority to request a drug or alcohol screening test.

The driver may then be asked to submit to a blood test if the officers believe they may be under the influence of additional substances. However, they gain their initial authority to request an alcohol screening test because of the use of alcohol. Once the blood test results come back, and they demonstrate drug use, the driver may then have additional evidence against him, even though the driver was initially pulled over and test for alcohol alone.

Thissconcept is best described through an example. Dana has two beers at a friend’s place. She also takes more than the allotted dose of sleep medicine. She hasn’t been sleeping well lately and decides that if she takes the medication prior to leaving her friend’s place, by the time she gets home she will be ready to fall asleep. Dana speeds on the way to her house. She is pulled over by an officer for speeding (valid traffic violation). The officer smells the beer on her breath and asks her if she has been drinking. Dana responds yes, that she has had two beers (reasonable suspicion by admission). The officer then asks her to submit to a field sobriety test. Dana assumes that she has only had two beers so her BAC is low, and she will easily pass the tests and readily submits. She blows a .02.

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According to the Centers for Disease Control and Prevention (CDC), there is a dangerous trend among approximately 14 million women in the United States. That trend is binge drinking. The latest statistics released show that this group “binge drinks” roughly three times per month and average six alcoholic beverages each time. The definition of binge drinking, according to the study, is having four or more alcoholic beverages per outing for women or girls.

These signs are problematic because the dangerous behavior is not just limited to high school and college aged females. Furthermore, such activity results in over 20,000 deaths per year for women and girls in the U.S. It is also documented that binge drinking leads to increased risks of sexually transmitted diseases, unplanned pregnancies, breast cancer and heart disease, among other things. For pregnant women, binge drinking can lead to fetal alcohol spectrum disorders and SDS, or sudden infant death syndrome.

According to the report:

• One out of eight women and one out of five high school girls admitted to binge drinking.

• Of the high school girls that consume alcoholic beverages, 50% admitted to binge drinking.

• White and Hispanic females were most likely to binge drink, in addition to women whose household earnings topped $75,000.

The CDC study consisted of a telephonic survey in 2011 of some 278,000 women and 7,500 high school females.

The frightening thing about this study is that these 14 million women and girls are going to attempt to get home after a night on the town or binge drinking at a friend’s house.

The result of making that decision to drive home after drinking can be life changing. Certainly where the average number of drinks consumed is six, many people are going to have consumed eight or ten. In virtually every instance where you have consumed six or more drinks, you will be arrested for driving under the influence (DUI) if pulled over in California. Pursuant to California law, it is a crime to operate a vehicle with a blood alcohol content (BAC) of .08 or more.

If you are convicted of DUI while speeding, having a child in the car 14 years old or younger, or having a BAC of .15 or more, the fines and penalties will be enhanced.

Even if you don’t get behind the wheel to drive, you can be arrested under the California Penal Code for being drunk in public (DIP). Determining factors are if the arresting officer feels that your state of inebriation is such that you are a danger to yourself or others, or that your intoxication level interferes with the use of public sidewalks and other common areas.

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When you have been pulled over on suspicion of driving under the influence of alcohol, the officer must have reasonable suspicion before he requests that you complete any field sobriety tests or blood alcohol tests. This reasonable suspicion can arise from admissions of the driver. For example, if the officer asks the driver if he or she has been drinking, and the driver responds in the positive. If the driver has not made any admissions, the officer may still obtain reasonable cause by observations. For example, if the driver has red watery eyes, is slurring or smells like alcohol.

The officer, after having obtained reasonable suspicion may ask you to complete some field sobriety tests. Upon completing the field sobriety tests, if the officer feels that further tests are warranted, he will ask that you submit to a breathalyzer, or ask that you take a blood test so that an accurate measurement of your blood alcohol can be taken.

The test that is administered at the arrest location is not mandatory. This is referred to as the preliminary alcohol test. However, the one administered at the station is. If you refuse to take this second test, and are found guilty of driving under the influence, you could potentially face an increased sentence due to your refusal.

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Each and every person in the United States has constitutional rights that cannot be taken away from them without due process. One of the most important rights is the Fourth Amendment right to be free from unreasonable search and seizure.

Unreasonable search and seizure means that evidence for any kind of prosecution or case may not be gathered unreasonably, and through a violation of privacy. A person’s car, home, or personal space may not be searched without reasonable cause.

This does not mean that officers may not obtain evidence from a person’s home, vehicle or private space. It means that they must first obtain a warrant. To obtain a warrant they must present their evidence to a judge and demonstrate that there is a strong probability that the evidence they are searching for exists in that person’s personal space and they have a valid reason to violate their privacy, despite the person’s Fourth Amendment rights. If evidence is obtained with a warrant, it is obtained reasonably.

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