My recommendation for a chemical test is to do a blood test. In certain circumstances you may not want to do that if you’ve been taking drugs. This is because they can test and retest the blood for various things, but 9 times out of 10 what we’re going to want to do is elect not to do any field sobriety tests, elect not to do any breath testing and agree to do a blood test as long as it’s being taken by a qualified person.
As we discussed before, this may result in you being arrested but if you’re at that point where they’re asking you to do one of the tests, the likelihood of you being arrested and spending the night in jail is very, very high already.
It’s better to get transported to a nurse or a phlebotomist or hospital to have a blood draw done; then we have to wait for the results. There are plenty of issues for us to look at and attack and to better defend a case with a blood test than anything else.
In Most Instances, You Are Given a Choice of Which Test to Undergo
In most circumstances, the officers will give you a choice. You can choose between a breath and a blood test. The officers may (and they shouldn’t but they may) discourage a blood test. This is because it takes more time and is more complicated for them.
But the blood test is a better option, and you are given the choice between the two as long as they’re both available. Under certain circumstances, one or the other may not be available. Someone may have a medical condition which prevents a blood test or they just may not have access to a blood draw person if you’re in a remote area.
Usually we don’t have that problem in Los Angeles, but sometimes if you’re out of the city, blood tests may not be readily available and you may have to do the other test. There are occasionally problems in blood testing; for example, the person who’s supposed to be drawing blood may not be capable of getting the sample. They may stick the individual many times and not get a sample. You may have to go to the breath test because the blood isn’t available for that particular situation.
The flip side may be that someone may be incapable of undergoing a breath test. There can be problems with a malfunctioning breath machine. You may go to the station and it may not work, so then you have to get a blood draw.
Police May Surmise You Are Impaired by Drugs When Breath Test Results Show Levels at or below Legal Limit
If somebody has been arrested for driving under the influence of alcohol and the breath test shows it’s a borderline or below the legal limit, usually the investigation will stop at that point.
Sometimes an officer may say the person is obviously impaired, and if it’s not impairment from alcohol, then it must be from drugs. They may request or demand that the person do a blood test or sometimes give a urine sample. This is because they believe the person is not only under the influence of alcohol but drugs as well. So there are certain circumstances where we have a borderline or a low blow on a breath test, and the person is then required to do a blood test because of the concern of drugs.
The Police Can Require You to Undergo Both a Breath and a Blood Test and in Some Situations, a Urine Test
Unfortunately, the officers are required to give people a second test after one has already taken the breath test. If it is believed that drugs are the cause of the impairment, then they do seek a blood draw or sometimes urine sample.
It is not unusual to see officers ask for a breath test in the field and a blood test in the station. They’re required to offer a blood test if the person does a breath test because the breath sample is not preserved. They don’t keep a sample of the breath, which they could, but they don’t for future testing. So the person arrested is advised they have a right to a blood test, which can be retested.
Sometimes we see breath in the field, breath at the station and then a person choosing to do a blood test, so we have three different chemical tests. Where there’s suspected drug use, a person might undergo a breath test in the field, breath test at the station and then a blood test as well to determine what, if any, drugs are in the system.
In some cases, we see a lot of testing and sometimes that’s helpful where we see differences in the results, but it can be very harmful if we see three different chemical tests coming up with the same results on alcohol. It can make it very difficult to defend in court before a DA, judge or jury.
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