Blood Test or Breathalyzer: Which Test Makes It Easier To Fight Your DUI?
I used to say that it didn’t matter which test you took, blood or breath, because both of the tests were subject to attacks based on scientific problems with the tests themselves. As a result of the recent decision of the California Supreme Court in People v. Vangelder, I have changed my recommendation. I now recommend that people who have been arrested for DUI choose a blood test as their implied consent test.
The reason is that a lot of the problem with breath testing is that it doesn’t directly measure the amount of alcohol in your blood. Alcohol in your breath does not affect your ability to drive, either physically or mentally. Only alcohol in your blood does. If you are absorbing (which can happen for up to 6 hours after drinking) the amount of alcohol in your breath is much higher than the amount of alcohol in your blood.
The Vangelder decision has done away with most attacks on breath.
The California Supreme Court, in a decision that flies in the face of science and due process, has said that when the legislature wrote the DUI law all of the problems with breath testing were known and the Court must assume the legislature knew about the problems when they wrote the law the way they did. The Court also said since the machines used to test breath in California are on the Federal approved products list, the problems inherent in their design are off-limits for attack. The problem is that there is no requirement that products on the list be scientifically tested.
Still, the Court left open an avenue of attack, but it’s hard to use because you need the right expert to testify. The Court has said that you can attack the specific machine when it was not used properly. When dealing with a breath test, a proper defense has to be carefully laid and it is much easier to attack the fermentation that occurs in blood taken by cops.
The method by which blood is collected and measured is discussed in my article How Blood Testing Works.
The fermentation problem is discussed in my article Fermentation: The Big Problem With Blood Tests.
The problem with breath testing is discussed further in my article Breath Test Science in DUIs?
If you have any questions about whether to take a blood or breath test at all, how to defend against them, which test to take or DUI in general:
Call me at (213) 479-5322. If you have an opinion, please leave a comment.