Breath testing and blood testing can be videotaped. It’s going to be an agency by agency and sometimes officer by officer investigation. In Los Angeles County, we have a lot of small municipalities, small cities that have their own police department. If we’re dealing with Beverly Hills, Culver City, Redondo Beach, and Santa Monica, they may have audio and video recordings in the breath testing rooms or blood testing rooms, and we may be able to get that information.
If it’s one of the larger municipalities like the city of Los Angeles or unincorporated Los Angeles where the sheriff is handling the cases, many times they do not provide us access to that information.
I’m not going to say that video and audio does not exist in the LA city facilities or the LA county facilities. I think it does. It’s just proven to be very difficult for us to get our hands on that information.
What Will the Police Do If the Individual Is Hyperventilating?
Well, we have seen refusals in all sorts of situations. Where we start to see unusual refusal situations is where there’s an accident, somebody’s injured, or somebody’s being transported to the hospital because of injuries. The officers are saying that they’re refusing when they’re under an emergency medical technician’s care or they’re strapped to a backboard.
The Police Can Be Aggressive in Their Attempts to Administer a Breath or Blood Test to an Injured Individual
We get reports where the person couldn’t do the field sobriety test. Well, they’re strapped to a backboard. That’s not really reasonable, but we see it. We see officers being very aggressive in their investigations. We see officers attempting to give portable breath test instruments to people in the back of an ambulance being transported to the hospital.
I’m working on defending a case right now where the person was transported to the hospital and the officers said you have to do a breath or blood test. The person put their arm out and said do what you have to do, and the doctor that was treating said that he would not in that circumstance do a blood draw.
The person is laying there strapped to a board, not saying anything, just having their arm out and because the doctor would not draw the blood, the officers wrote it up as a refusal.
We see all sorts of different situations from breath testing equipment not taking samples to the blood draw technicians or phlebotomists not being able to draw blood from a vein and from officers just creating refusals where no refusal actually existed.
Personal Attention
