DUI Timing of Testing

When a driver in Los Angeles is arrested on suspicion of DUI, he or she will be given the option of taking either a breath or blood test. If suspected of driving under the influence of drugs, only a blood test would be available as there is currently no breath test that can measure for drug intoxication. Over time, a driver’s BAC will change as alcohol is either absorbed into the body or eliminated. As a result, the timing of DUI tests can be critical and if officers wait too long, the reliability of the test results may be subject to challenge.

During a DUI investigation conducted after a driver has been pulled over and the officer suspects that he or she is under the influence, the officer will ask the driver to provide a breath sample using the officer’s portable preliminary alcohol sensor (“PAS”) device. This test will measure the driver’s BAC but is not considered to be as reliable as the Breathalyzer test conducted at the station. The test is voluntary for most drivers, however drivers who are under the age of 21 and those who are on probation for DUI must take a PAS test when requested by an officer.

If the driver is arrested on suspicion of DUI, he or she will be given the choice of taking a breath or blood test. Drivers who refuse testing can still be charged with DUI and would face a mandatory one year license suspension, during which they would be ineligible for a restricted license.

If the driver selects the breath test, the test can be conducted quickly on a Breathalyzer machine at the station and the results are known instantaneously. If the driver requests a blood test, he or she would have to be transported to a hospital, laboratory or other location where a medical professional can administer a blood test. This is more time intensive than the breath test and law enforcement officers will often encourage drivers to take the breath test, which is easier for them to conduct.

Because testing is conducted after a DUI suspect has been driving, it may not provide an accurate depiction of the driver’s BAC at the time of driving. In cases where a driver has a rising blood alcohol, his or her BAC at the time of driving may actually be under 0.08 percent and may rise above the legal threshold as the body continues to absorb alcohol.

A long delay in testing may affect the reliability of the test results. In fact, where there has been a delay of three or more hours in testing, the DMV will require testimony from a toxicologist regarding the driver’s BAC at the time of driving. The defense can also present testimony from a toxicology expert regarding the driver’s BAC at the time of driving.

In some cases, a delay in testing may result in BAC results that are under 0.08 percent. However the prosecution may still proceed with a DUI case and may argue their case using retrograde extrapolation to show that a driver’s BAC was actually above the legal limit at the time of driving. This may be difficult to prove definitively and the prosecutor may consider a reduced DUI charge, such as wet reckless, dry reckless or exhibition of speed.

If you have been arrested for a DUI offense, it is crucial that you go over your case with a knowledgeable DUI attorney right away. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Michael Kraut understands how to effectively litigate complicated DUI issues on behalf of his clients.

For more information about the timing of DUI testing, and to schedule your free consultation, contact Michael Kraut at the Kraut Law Group Criminal & DUI Lawyers, Inc. located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at (323) 464-6453.