This is Dan Smith, Supervising Attorney at San Diego Defenders. I am asked by many friends whether it is better to take a breath test or blood test. First of all, I tell them, you must understand that if you are arrested you must take a breath test or a blood test – YOU MUST CHOOSE ONE OR THE OTHER UNDER THE IMPLIED CONSENT LAW IN CALIFORNIA! We have had an alarming number of cases where our client was told by the officer that they “would just get a warrant” for the blood test and are then charged with a refusal. It is important to ask the officer two questions 1. “Am I under arrest for DUI?” If the answer is yes, then tell the officer “I choose to take one of the chemical tests voluntarily.”
Another exception to PAS rule is if you are on probation for a DUI or if you are under 21 years old. If so, you MUST take the hand held test if the officer thinks you are driving after drinking. If you are not on probation or underaged, don’t be fooled. The police may say they think you are under the legal limit or you are borderline and will let you go if you take the test and have a low result. Don’t be a sucker. They have already decided to arrest you and they are only trying to get more evidence against you. If you are arrested, as explained above, you will still have to take a chemical blood or breathe test whether you take the hand held PAS test or not.
If you are certain you only had a very small amount to drink, one beer, one 4 ounce glass of wine, one ounce to an ounce and a half shot of hard alcohol, take the blood test. It is usually more accurate and will not be thrown off by a burp. If you had more than that to drink, take the breath test. It will give your DUI lawyer more to work with. Remember, blood tests can be wrong too if the sample is not handled properly.