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Blood, Breath or Refusal.


When people discover that I am a DUI defense attorney in Los Angeles, the question that is often asked is “If I am arrested for a DUI, should I take a breath test, blood test or refuse all tests?” Attorneys have different approaches to defending DUI cases and have different opinions on the advisability of refusing all tests or agreeing to a blood or breath test. The advise that I normally give is that it is not a good idea to refuse all tests. The law in California requires that a person lawfully arrested for a DUI submit to a test. It is the suspects choice as to whether this is a breath test or a blood test. The consequence of refusing exposes the suspect to the probability of a one to three year license suspension from the DMV. In addition, a DUI refusal enhancement may increase penalties for a DUI in court. The other side of the coin is that, without a blood or breath test result, a prosecutor may find it difficult to prove a DUI allegation with only the officers opinion about the defendants sobriety, but this is a high stakes game to play and can lead to jury trial. This is OK if the defendant has the time, funds and tolerance for risk that jury trial necessarily involves.

As a defense attorney, I deal with the evidence as it is presented in every case and I do not have a strong opinion as to whether a suspect should submit to a breath or blood test. Most DUI lawyers will agree that blood alcohol analysis is generally more accurate than breath alcohol analysis and breath test readings may inaccurately reflect a defendants true blood alcohol level for various reasons. However, there a different arguments that apply to breath and blood test cases and blood test readings can also be challenged.

One benefit in submitting to a blood test is that it provides a later opportunity to retest the sample through the defense attorney's toxicologist. A breath machine does not retain a sample for independent analysis.

If you are interested in consulting with a DUI defense lawyer in Los Angeles, please call Gold & Witham for a free consultation.