DUI Blood test or Breathalyzer in CA? Which Should I Take?

By otmseo on August 24, 2020

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 because both of the tests were subject to attacks. These attacks are based on scientific problems with the tests themselves. As a result of the 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.

Why Not Choose Breath?

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 your breath alcohol is much higher than the amount of alcohol in your blood. You can digest alcohol for up to 6 hours.

The Vangelder decision has done away with most attacks on breath.

The California Supreme Court, has said that when the legislature wrote the DUI law all of the problems with breath testing were known when the law was written. The Court said it 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 lawyer and right expert to testify.  The Court has said that you can attack the specific machine when it was not used properly.   A proper defense has to be carefully laid. It is much easier to attack the fermentation that occurs in blood taken by cops.

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 today.

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