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Never Take a Breath Test

You should NEVER, EVER Blow into an Alcohol Breath Testing Machine - Instead, Always Request a Blood Test!

You should NEVER blow into an alcohol breath testing machine if you are being investigated for Driving Under the Influence (DUI) of alcohol by a police officer.

There are two exceptions to this rule:

  1. If you are under the age of 21, you must blow into a breath testing machine, because if you refuse you could lose your driving privilege for one year.
  2. If you are currently on probation for a DUI conviction, you must blow into a breath testing machine if asked.  A term of probation is always that you not drive with any measurable amount of alcohol in your blood. Again if you refuse to blow into the breath testing machine you could lose your driving privilege for one year, plus you may get additional punishment from the court for violating the terms of your probation.

Unless one of the two exceptions above applies to you, here are some other reasons why you should never blow into an alcohol breath testing machine when asked to do so by a police officer:

Reason #1: You don't have to.  Usually while conducting a DUI investigation, and BEFORE an arrest, the officer will want you to blow into a Preliminary Alcohol Screening (PAS) Machine.  You have the right to decline this test. Specifically, Vehicle Code 23612(i) requires that the officer advice the person that the PAS test is voluntary and the person can decline the test.

Unfortunately, many officers won't tell you this and instead say “you must blow into this” and then later claim that he did advise you that it was voluntary - yes, they do lie!

Reason #2: If you blow into a Preliminary Alcohol Screen (PAS) machine, the officer will know the result immediately and will have that result in mind when writing the arrest report, which will likely now be more embellished.

If you don't blow into an alcohol breath test machine and request a blood test instead, the officer will have no idea what the result is because it takes a couple of weeks before the blood test result is available. The officer's report will have been written and its content will likely be more objective since the officer wrote it not knowing the blood test result.

Reason #3: Alcohol breath testing machines have many problems, but the worse problem, in the opinion of many experts, is that the device will overstate the result by 100% to 200% if you are still absorbing the alcohol that you drank.

The government “expert” will assume that the individual has fully absorbed all of the consumed alcohol before taking the breath test and make an opinion based on that. In fact, most of the time, that's a false assumption.

Being “fully absorbed” means that all of the alcohol that was drank is no longer in the stomach or in the small intestine – all the alcohol has absorbed into the blood stream and has reached “equilibrium” in the body.

Equilibrium means that the alcohol content is the same throughout the entire body.  Thus if a blood sample was drawn from your big toe, and one from your ear lobe, and both samples were analyzed, the results would be the same.

The problem is it can take up to 6 hours to become fully absorbed, especially if the subject had food in the stomach.  Food in the stomach will slow down the absorption rate of the alcohol.

The point is no one knows if they are fully absorbed of the alcohol that they drank, so by blowing into a breath test device you are taking a huge risk because if you are not fully absorbed, the machine will overstate the results by 100-200%.  This means that if someone in reality has a blood alcohol concentration of .05%, the machine can give an erroneous result of .10% to .15%.

Reason #4: The most important reason a driver being investigated and accused of DUI should NEVER blow into an alcohol breath testing machine is that the California Supreme Court, in a recent ruling (People v. Vangelder, 13 S.O.S. 5916), has decided that a person accused of driving with a blood alcohol concentration of .08% or more (VC 23152(b)) cannot challenge the science and overall reliability of breath testing devices.

The Vangelder ruling does not eliminate all defenses but it does preclude an accused person from defending him or herself by attacking the flawed science behind alcohol breath testing, which makes the results from alcohol breath testing machines unreliable.

In making its ruling, the California Supreme Court chose to ignore the latest science and research conducted by the top scientists in the field as it relates to breath testing for alcohol; the court instead accepted the “junk science” put forth by the government for purely political purposes.

The Court's position was simple: the end justifies the means. In other words, the Court's opinion was driven by an agenda to protect the breath testing programs that are currently in place and has cost the government millions of dollars.

To show how absurd the court's agenda-driven ruling is, the court writes towards the bottom of page 46 of its opinion: “It is a well-settled principle that the legislative branch is entitled to deference from the courts because of the constitutional separation of powers." The court then cites various authorities for this well-established separation of powers proposition.

However, the court goes on to write: "Just as a court will not substitute its judgment for that of the Legislature in this regard, nor may a defendant, through an expert witness, invite a jury to substitute the expert's judgment for that of the Legislature…”  The court cites no authority whatsoever for this latter proposition. Not one single authority.

The court embraces the constitutional 'separation of powers' doctrine that applies between it and the legislature (two separate branches of government), and ignores the constitutional 'due process' rights of an accused person.

According to the court, a person accused of DUI cannot attack the general reliability of an alcohol breath test machine in his/her defense because the legislature said so.  Is the legislature all of sudden all powerful and infallible?  The judgment of the legislature now trumps the constitutional right of a person accused of a crime to defend him or herself? This is the absurdity of the court's ruling in Vangelder.

Yes, no doubt the Vangelder ruling will be appealed to the United States Supreme Court, because it violates the Constitutional right of an accused person to defend him or herself.

Until the Vangelder ruling is clarified or overturned, you will be better off to NEVER, EVER blow into an alcohol breath test machine if a police officer stops and accuses you of DUI.

ALWAYS request a blood test instead.

If you have been arrested for a DUI in Fresno, Madera, Kings or Tulare Counties, contact Terry A. Wapner to consult with a DUI expert who understands the science and defenses available for blood and breath testing.

What Happens Now?

Roadside arrest

It’s a frightening situation. You are arrested for DUI after submitting to a breathalyzer and participating in a couple of field sobriety tests. The officer confiscated your driver’s license and provided you with a temporary license. You were given a notice to appear in court in a few weeks. Now what? Fresno DUI attorney, Terry A. Wapner, can help you make sense of this situation, guide you through the process, and might be able to provide the defense that results in finding you Not Guilty!

Myths & Truths About DUI Charges


Myth: “There is nothing that a Fresno DUI defense lawyer can do.” Truth: Absolutely not true. Over the past 7-10 years, the conviction rate in California for DUI's is only around 70 percent. That means that 30 percent of the charges are being reduced to charges that are less than a DUI charge or not guilty verdicts are being returned. I have the ability and have won Fresno DUI cases. Do not give in to despair and believe that you are destined to lose. Entering a guilty plea to a DUI charge when the evidence against you can be challenged may result in an expensive mistake that could haunt you in the long run.