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Is it legal for an officer to make you take a breathe test,, then when at booking require a blood test?

Clovis, CA |

i got pulled over by the CHP. Blew way higher than I felt (so the story goes). But when he took me took jail he said i need you and suggest a blood test? Why? Any help please?

Attorney Answers 8


  1. Best answer

    There is caselaw that offers some hope for motorists whose choice of test was interfered with by a coercive officer. If the roadside breath test was done on an "evidential" machine (like the EPAS already mentioned), then it satisfied your implied consent obligation, meaning the cop had no authority to ask for another test unless he suspected drugs. If the roadside breath test was just a Preliminary Alcohol Screening (PAS) test, it does NOT satisfy your obligation, and the cop was right to ask for another test. However, he STILL does not have the right to influence your choice of test.

    Get a free consultation from one of these fine attorneys here and find out what you can do.


  2. Depends. A preliminary alcohol screen test (breath test before arrest) is voluntary and they are supposed to advise you of that. Once arrested, you must submit to a chemical test of your blood or breath or risk having your license suspended for 1 year. So, yes, it is legal. But not necessarily properly done.

    Any information provided through Avvo.com in response to a question is not, and cannot be considered a formation of any Attorney-Client relationship. Questioner understands that the nature of this system allows only for a cursory review of case information, and more detailed information should not be divulged in this public forum. As such, Questioner is recommended to contact an Attorney in order to discuss the full details of their case and a more specific advisement of potential rights and liabilities.


  3. Mr Murillo is correct. Blood is done for three reasons: 1) You request it 2) The officer requires it or it is a forced blood draw. If you thought your breath was too high it may have been a good idea. 3) If the officer suspects drugs under 23152 (A). Get one and the lawyer of your choice will explain the nuances. Good luck. Hope this helps?


  4. Mr. Murillo is correct. If you gave a breath test at the scene with certain types of devices, it does not "count" toward you obligation, as a condition of having a driver's license, to give a breath or blood test. In certain areas, the test on the side of road suffices toward this obligation (i.e. in Riverside County, they use an "EPAS"). In other areas, once you are at the police station, after being arrested, you must submit to a breath or blood test. In your case, you gave blood. So was everything that happened legal? Yes, most likely.


  5. My colleagues are correct. Legally, you're required (unless you refuse) to take one, not both. You have the option of having a blood draw in addition to a breath test if you want it. You need an experienced DUI to help you. Many of us on Avvo provide a free consultation, so make some calls.


  6. Unless the officer had grounds to suspect drug use as part of whatever he thought was causing impairment then you had the right to your choice of blood or breath.

    You should hire a DUI defense lawyer to help you figure out what can be done to fight the blood draw and possibly other aspects of your case.


  7. You have to take a blood test if the officer reasonably suspects drugs in your system, you request a blood test, the official breathlyzer is not working properly or available, also if you refuse any test and the officer gets a warrant for a forced blood draw or there are exigent circumstances where a forced draw is done without a warrant. The officer can always ask you to take a blood test in addition to a breath, and if the breath test you took when pulled over was a P.A.S. field breath test, then you still have to take an official breath or blood test. You should have a consultation with an experienced DUI defense attorney where all the facts and circumstances of your specific arrest can be examined and your questions answered.


  8. As you worded your question, the answer is yes, but only on suspicion of drug use or if the breath test didn't work and there was no backup device.

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