Chemical Blood Alcohol Content (BAC) Tests

If you are arrested on suspicion of DUI in California or elsewhere, you will be asked to take a chemical blood alcohol content (BAC) test at the police station or medical facility to which you are taken after your arrest.

To take the chemical BAC test you will be asked to provide a sample of breath, blood or less commonly, urine. The sample will be chemically analysed to determine the level of alcohol (and/or drugs) in your system.

It is important to be clear that the chemical BAC test is a test requested after an arrest for DUI and/or DWI. Its purpose is to provide officers with evidence that you were driving under the influence.

It is distinctly separate from the roadside sobriety test and preliminary alcohol screening test (roadside breath test) conducted before an arrest to help officers determine if there is probable cause for an arrest.

You will be requested to take the chemical BAC test regardless of whether you have taken either of these roadside tests prior to your arrest.

Can you refuse a chemical BAC test? No.

Chemical BAC tests are covered by “implied consent” laws. All US states, California included, have enacted implied consent laws. Under these laws it is taken for granted that anyone granted the “privilege” of a driver’s license has consented to submit to a chemical BAC test if lawfully arrested for DUI and/or DWI.

This means you do NOT have the right to refuse a chemical BAC test if arrested in California, or any other state.

You must take the BAC test even if you have already taken a preliminary alcohol screening test (roadside breath test) before your arrest.

Should you refuse a chemical BAC test anyway? No.

Although you do not have the right to refuse a BAC test, in California or any other state, you can of course refuse it nonetheless. However, there is nothing to gain and plenty to lose by refusing to take a chemical BAC test.

• If you refuse to take the test you will be charged with a separate and additional offence to DUI or DWI known as a “refusal enhancement.”
• You will incur severe penalty enhancements for refusing to take the BAC test. Penalty enhancements vary from state to state. In California they include automatic suspension of your license for at least a year.
• These penalty enhancements will be incurred even if you are NOT later convicted of DUI or DWI.
• They will be incurred even if you change your mind and agree to take the test, or are forced to take it. (Yes, officers can and often do perform forced blood draws for the BAC test.)
• You will not have the right to consult with an attorney until you have either taken the test or definitely refused it.
• Your refusal to take the BAC test will be admissible in court and may be used against you as evidence of “consciousness of guilt.”

Submit to the chemical BAC test but know your rights

All is not lost if you take the BAC test and fail. Although you must (and should) submit to the test, you have rights. Be aware of your rights and inform your DUI lawyer of any violations.

• Before the test, the police officer must advise you of your legal obligation to take the test under the state’s implied consent laws. They must also inform you of the penalties for refusal.
• You have a statutory right to choose whether you submit a breath, blood or urine sample for the BAC test.
• You have the right to request a second blood sample (or a blood sample in addition to a breath test) to be independently analysed by you or your DUI defence lawyer. A good DUI attorney will have blood analysis facilities or easy access to such.
• Once you have taken the BAC test you have the right to speak with an attorney, or friend or family member.

Copyright 2008 Caroline Mackenzie