CA DUI: Implied Consent and The Chemical Test

There are a couple of rules to the chemical test that must be followed by the police if the test is going to be valid and used as evidence against you.

First, you have to be under arrest to be asked to take one of the chemical tests. Secondly, you must also be advised that if you do not take a test your license will be suspended by the DMV for 1 year. At the DMV hearing the fact of your guilt or innocence are not relevant. Only whether is was a valid arrest and that you rights and advisement’s were told to you. Of the over 180,000 (1995) persons arrested for a DUI in California only about 8% elect to refuse the test. Usually it’s because of an argument or some problem with the arrest situation. Once you refuse it is very unlikely that you will have the license returned by the DMV. Their return rate is less than 5%. Reasons why someone would have their license returned have been the person didn’t understand the officer because he didn’t speak English. Another person had it returned because wasn’t actually driving the car.

VC 23157.5- States you must be given a choice of one of two tests available. Blood or breath. Urine was eliminated in 2000. Except were drugs are suspected. Not for Alcohol.

The rules of the chemical tests are as follows:

A. The officer has three hours within the time of the stop to issue you a chemical test.

B. You do not have a right to an attorney prior to a chemical test.

C. An inability to complete a test is interpreted to be a failure.

D. If the officer suspects drugs then you will be asked to take either a blood or a urine and you will not have a choice.

Chemical Tests
The suspect has to be an arrest (People v Superior Ct. (Hawkins) (1972) The question of the amount of force used to “make” someone take a chemical test always comes up in classes. According to the court’s interpretation the police can use ‘reasonable’ force to have you take a test. The following is a case that went up and down in the court and would give you a ‘borderline’ case. Reasonable force – issues of force come up all the time in DUI arrests about being “required” to take a chemical test. (see case Newport Beach vs Hammer, 9th Circuit Court of Appeals)

Forced Blood Samples
(McGowan V City of San Diego (1989) CA state appeals court held that although the forced used to take blood against the defendant’s will was permissible for purposes of the criminal case, so that the evidence is not suppressed . . . this does not prevent civil action for use of excessive force . . the degree of force which ‘does not shock the conscience’ of the ordinary person but was it reasonable.

Procedure for Chemical Test – VC 23158

Breath Test

  • Nothing in your mouth 15 minutes prior.
  • Two readings between .02
  • (.000 readings to the thousandths place is now acceptable)
  • 2100 cubic centimeters of breath to one cubic centimeter of blood.

The breath machine is calibrated to a set number (as set by Calif. Admin. Code 7). This number (2100:1 – blood/breath) is good for approximately 8% of the population. Apparently from studies, most people have various ‘partition ratios’, depending on their own chemistry. As you can see this leaves about 46 percent lower than their breath test reading and about 46 percent higher than their breath test based on their own chemistry. The only way to find out one’s own ‘partition ration’ is to have a toxicologist test you for it.

Blood Test

This is the most accurate and one of the only ways you can have a sample saved and have your own independent test made to determine your BAC. Additional testing may be done by independent sources You have a right to have your own test done.

Urine Test

Purge your bladder, wait 20 minutes and go again. This is the least reliable with higher results due to having water levels tested instead of direct blood levels. Water level are in you system over a longer period of time in your body. And therefore the results ‘usually’ reflect alcohol that has been in you ‘water’ levels over a longer period of time, when compared to blood levels. Usually they are hight by 1.33 to 1.0

The Consequences of Refusing to Take A Chemical Test

Refusing or not completing a chemical test results in the following penalties by the DMV:

  • 1st Refusal: loss of license for 1 years
  • 2nd refusal: second refusal in 7 years 2 year revocation

If you refused a chemical test for a DUI you will need a California DUI Lawyer.

DUI Attorneys


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