A Fresno driver is required to take a breath or blood test if he has been arrested for DUI. This is because California is one of many states that follow an implied consent law. Generally, this law states that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving while intoxicated, you consent to taking a chemical test. The test will determine your BAC.
These types of tests must be taken at the time of the driver's arrest and the officer should allow the driver to choose whether he wants to do the breath or blood test. Generally, urine tests are only used when neither the blood nor breath test is available.
Before I get into which one may be more preferable, keep in mind that refusing to submit to a chemical test will cause you to incur fines, license suspension and even jail.
Breath: If a driver chooses breath, he will provide the sample by blowing into a breath device. Before starting the test, the officer should observe the driver for a set amount of time (15 minutes) to make sure there is no belching or other bodily function that could lead to contents from your stomach to enter into your mouth.
The officer should obtain two samples in order to check accuracy. If the officer notices a difference between the samples of more than .02 grams per 100 milliliters of blood alcohol, the tests should be deemed invalid. If, however, the two are within the limit, the machine will select the lower number as the reported BAC.
Blood: If the driver chooses a blood test, a trained technician will draw the sample. This is usually done at a hospital or clinic. Once the blood is drawn, the technician should properly identify, handle, transport, test, and accurately report the results.
Here, the lack of a sterile atmosphere, inadequate preservatives, or failure to properly store the sample may lead to inaccurate BAC results.
So, what's better? Well, attorneys will differ on this answer and each case is different. There may be pros and cons to each, depending on the situation. However, one pro for the blood test is the fact that it can be retested. Breath test reports can be reviewed, but there is no way to retest a defendant's breath.
Also, some members of the jury may take too much stock on the breath device. These devices are not always correct, but it is hard for some individuals to truly understand that. It seems that people can understand human error (which may happen with blood tests), but don't think that a machine can produce a false result (which may happen with breath tests).
In the end, it really depends. The important thing to realize is that an unfavorable breath or blood test result does not mean you are automatically guilty! If you have been arrested and charged with DUI in Fresno or any of the surrounding areas, do not hesitate to call my office and we can schedule a consultation.