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Can a Chemical Test Be Challenged?

In California, the crime of driving under the influence of drugs and alcohol is covered under Section 23152 of the California Vehicle Code. Sec. 23152 goes over several things, including driving with a blood alcohol concentration (BAC) of 0.08 percent or greater, commercial drivers with a BAC of 0.04 percent or above, drug addicts, driving under the influence of anydrug, or alcoholic beverage.

Under Section 23152(a) it reads: “It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.” Did you read that right? It means that you can be arrested for DUI even if your BAC is less than the 0.08 percent legal limit – a lot of California drivers are not aware of this fact.

When You’re Asked to Take a Chemical Test

In a traditional DUI stop, you’ll be asked to perform field sobriety tests and if you fail these tests (as most people do), you’ll be asked to submit to a blood or breath test to determine your BAC. As far as the field sobriety tests are concerned, there is NO penalty for refusing and we advise people against taking these highly-subjective tests.

The blood or breath test is a different story. Be aware that if you fail to complete the blood or breath test or if you refuse to take such a test, your driver license will be suspended automatically for one year under California’s implied consent law.

“Are blood and breath tests always accurate?” No, they are no always 100% accurate and they are open to question. Of the two, blood tests are more accurate than breath tests, but even they can be mishandled or lab technicians can fail to follow proper protocol.

If your BAC came back at 0.05 percent, 0.08 percent or higher, that does not mean it’s the end of the road. As your DUI attorneys, we’d want to scrutinize their results.

Some reasons for inaccuracies include:

  • The driver was a diabetic.
  • The driver swigged mouthwash with alcohol.
  • The driver was on a low-carb diet and in ketosis.
  • The breathalyzer wasn’t properly calibrated.
  • The driver ate before the test.
  • The driver vomited or hiccupped right before the test.
  • The blood test was contaminated.
  • The blood was not stored properly.
  • The breath testing device was defective.

If you were arrested for DUI in Orange County, realize that the blood or breath test evidence may be faulty or otherwise subject to challenge. We do this all the time and we know how to look for flaws in the prosecution’s case. To learn more about your defense possibilities, contact the Law Offices of Virginia L. Landry, Inc. today.