This is a hypothetical story: These past weekend, many drivers were arrested in the San Fernando Valley for DUI. I am not a drinker, but sometimes I need to take medication which may contain a bit of alcohol. So far I have never ran into a DUI checkpoint, but I am afraid my medication can get me in trouble. I know that if i refuse the tests, my punishment can be worse. However, I wonder for people who are under medication and need to drive for employment purposes, what is the best test to take? Is it the blood test? Or the breath test? I know for a fact that I should not do the equilibrium test because it is too easy to fail it.
Criminal Defense Attorney
The blood test is the most reliable and a blood split can be done on your behalf if there is an issue about the BAC reading. The breath test does not generate any physical evidence and thus cannot be examined later.
Do NOT refuse ever because the law presumes you to be DUI if you do.
You can refuse the PAS (Preliminary Alcohol Screening test) which is the device you will blow at the scene. The officer must tell you it is optional but you can always ask whether that's the PAS device and you can refuse it. They must tell you that it is optional. You can also refuse the Field Sobriety Tests (FSTs). But never refuse the chemical test (which is the blood or breath test at the station). The breath test is better if you believe you have alcohol in your system and you may be under the influence because there is a 0.02 error margin with breath, blood is very accurate and the result cannot be disputed. Whatever number comes back at a blood test you are stuck with it.
The law is very clear. You can take medication but cannot drive if it affects your ability to drive and you will be impaired.
Sharon Paris Babakhan
You are permitted to refuse all field sobriety tests, including the preliminary alcohol screen. Usually for certain prescription drugs like Ambien, or such, it's probably better to take breath. But if you've had anything to drink, it's better to take blood because it's more accurate and there's a testable sample. Refusal is rarely a good idea. I say rarely, because usually when I beat them it's because the advisal is improper and doesn't constitute a proper admonition. But, properly established, the refusal leads to 1 year license suspension.
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The first breath test an officer will likely ask you to take is a Preliminary Alcohol Screening (P.A.S.) test. Technically this is a field sobriety test, and not a breath test that was initially intended to be used for evidence purposes of a blood alcohol content level. If the officer properly advises you, you will be told by the officer (generally) that the P.A.S. test is just used to determine whether or not there is alcohol in your system, and if arrested you will have to submit to an additional breath or blood test. Even though the P.A.S. test is supposed to be just a field sobriety test, the results are often used against a defendant in pre-trial negotiations, and possibly at trial, if they are the same or higher than the later breath or blood test after arrest (or sometimes if they are just high in general). If you are not already on probation, then it is generally speaking, not a good idea to do the PAS test, or other field sobriety tests. Keep in mind that sometimes they can be beneficial, and there is no 100% sure answer on whether they are helpful or hurtful. Depends on many factors and variables. Also, keep in mind that in some counties they use an E.P.A.S., which can specifically be used for Evidential purposes.
It is also possible to get arrested for a DUI even if there is no alcohol involved, if they believe you are driving under the influence of drugs, including prescription drugs. For example, if the prescription drugs make you drowsy, you can have DUI issues.
If the medication you are taking has only the slightest bit of alcohol in it, it should not creates any issues with either breath machine or blood test as far as alcohol content level is concerned...but of course, there are exceptions to everything. Both breath test and blood tests can have their issues. You can retest a blood sample, so if fermentation occurs that raised the alcohol content, retesting the blood may reveal that. Keep in mind there can be other issues with blood tests.
Likewise, there are some defenses to breath tests that are not as available when challenging a blood test. For example, a breath machine is more likely to give inaccurate results when someone is in the absorption phase (ie. just had a drink immediately before driving). This can be a defense to a breath machine, but not a blood test (although you could still argue rising alcohol content level).
Keep in mind that if you do a blood test, your time at the station after arrest is likely to be higher, since they won't know the results of the blood. If you blow into a machine and the result is .01 (and you are 21 or older and not on probation), you should not have any DUI related issues based on alcohol. If your medicine only has a trace of alcohol in it, and you only take a teaspoon of the medication, I would really be surprised if you had any alcohol related issues even with a breath machine test. If you refuse to do all field sobriety tests (which is generally advisable), expect to get arrested. So you have to weigh in the time factor of getting arrested and then then spending hours in jail after taking a blood test.
This is NOT advise of what you should do, but if I were in a situation where I was 100% fine, had no alcohol or drugs other than a normal dose of cough medicine a few hours ago, and I was not on probation and over 21 years old, I would likely ask the officer to see the P.A.S result if I took it, and if the officer agreed, I would just blow into the P.A.S. test once. If it came back as a .01 or .00 (which is what I would expect based on the above), then I would expect the officer to let me be on my merry way absent some other issue (like a car accident or egregious driving).
Sometimes the officer can go further and think there is a drug issue, and arrest you at that point and give the implied consent speech for a blood test. Remember, NOT advise. There can be issues with any type of test (and defenses to them).
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DUI CHECKPOINTS 101
Many of us know people who have gone through DUI or "Sobriety Checkpoints." For most, it is an uncomfortable and perhaps miserable experience. Lots of people leave feeling as though their rights were violated. Understandably so. Much ink has been spilled on the constitutionality and efficacy of these checkpoints but that's for a different article. This article will lay out what you can expect, explain how to handle yourself and some common mistakes that people make going through DUI and driver's license checkpoints.
Common Checkpoint Procedures
When approaching a checkpoint, there will likely be a long line of cars. If you wish to avoid the checkpoint you may make any legal turn to circumvent it. If you follow traffic rules and go around the checkpoint, the police cannot pull you over for that. People get in trouble, however, for making an illegal u-turn or other illegal traffic maneuver to avoid the checkpoint. The police can pull you over for that.
If you decide to continue through to the checkpoint, most often the police will narrow the street down to one lane (maybe two) and have some sequence of vehicles stop: every vehicle, every other vehicle, every fifth vehicle, etc. If you are stopped, the police will ask you to roll down your window and probably ask for two things. First, they want to see your license. Second, they will ask if you have been drinking. If you answer "yes" then it's guaranteed that they will send to a screening lane to investigate further. If you answer "no" and you don't display any signs of being intoxicated, they are required to let you go.
What are these signs of intoxication?
- Odor of alcoholic beverage
- Slurred speech
- Red or bloodshot, watery eyes
- Fumbling with one's license while handing it to the officer
- Confusion or mental impairment
Here's the catch: if you say "no" and the police do notice signs that you're intoxicated ("objective symptoms of intoxication" in police parlance), you have just made it worse for yourself. They will send you to the screening lane for additional investigation but the police now believe that you were trying to hide something from them. At this point, you should assume you are going to be arrested because the chances of the police letting you go once they believe you are hiding something is basically zero.
Your Rights at a DUI Checkpoint
If you have been drinking and a police officer at a checkpoint asks if you've had anything to drink, what should you do? You should respectfully refuse to answer. You do not have to answer the police officer's questions. If you have been drinking, the best thing to do at a checkpoint is to remain silent. You may briefly tell the officer that you are invoking your right to remain silent. After that, be quiet.
Once the police officer realizes you are not going to answer questions, he or she will likely try to "check your eyes." This means that the officer is going to attempt to administer a field sobriety test on you: the horizontal gaze nystagmus test or "HGN." This is the test where the officer asks you to follow a finger or a pen with your eyes. Do not perform this test!
You have a right to refuse field sobriety tests and you should respectfully refuse to do them. If there is an officer there who is a Drug Recognition Expert (DRE), you have the right to refuse to allow him to examine you. You also have a right to refuse a chemical test but only before you are arrested. So exercise your rights. Be a conscientious citizen but also be respectful. Do not antagonize or belittle the officers. Say as few words a possible and be firm when you speak. You should expect the police to exert a lot of pressure on you to perform the tests.
Handling Police Pressure
That bears repeating: the police are going to put a lot of pressure on you to perform the field sobriety tests and blow into a machine before you are arrested. Do your best not to succumb to this pressure.
The best way to handle a DUI checkpoint:
1. Be polite and courteous.
2. Decline to answer any questions about drinking and driving (if you are in fact drinking and driving.) Simply state, "I'm sorry officer, but on advice of my counsel I decline to answer based upon my 5th amendment rights." Your refusal to answer cannot be used against you.
3. Decline to take the PAS (portable alcohol screening test.) This is the "breath test" usually given after FSTs (field sobriety tests) and just before you are actually placed under arrest. You are NOT required to take this test, and the police must so advise you. Your refusal of this test cannot be used against you.
4. Do take the FSTs or SFTs (standardized field sobriety test). You are NOT required to take these tests, but your refusal to do so can (and WILL) be used against you. You should do them, but inform the officer(s) beforehand of any injury or equilibrium problems you have. Remember - these tests are designed to gauge not only physical impairment (balance & coordination) but also mental impairment (ability to remember and follow directions.) You have to concentrate on executing the instructions as told to you. If you aren't sure - ask for the instructions to be repeated until you are sure you have them down in memory.
5. If arrested, take the blood test. It is more accurate than breath, and it provides your attorney with an opportunity to have the blood retested if need be. Only consent to the blood test for administrative purposes (DMV), not for criminal (4th amendment purposes.) Make sure this is clear to the arresting officer(s). You are required by law to consent for DMV purposes (CVC 23612), but the U.S. Supreme Court ruled in Missouri v. McNeely that a suspect has a 4th amendment right that requires the government to get a warrant to draw a blood sample. As such, there is an as yet unsettled area between the administrative (DMV) requirement and the 4th amendment right. CA is pretty clear - an administrative requirement cannot be used to force the waiver of a Constitutional Right. Please note: this particular area (DUI blood draws) has not been directly address in CA as of yet.
As for medication - just because you can legally take the medication (e.g. you have a prescription), that does not mean you can drive while on the medication if it impairs your driving ability to an appreciable degree. Think of it like this: I don't need a prescription to drink alcohol, and it is not illegal to drink and drive (over the age of 21) - it is only illegal to drink and drive if the alcohol impairs my driving ability or if I am over 0.08 (0.04 for commercial drivers.) The medication is not a defense or a justification for impaired driving.
First email to velcro Hall in any medication should not get you in trouble.
Of course Nikel does alcohol in it but it is not to be taken before you
drive dayquil does not so medications like that can be a problem period how
to check point you should just say no to take any drugs or alcohol do not
let them look in your eyes you can refuse the field sobriety test you can
refuse the handheld breath test then they have to make a choice to arrest
you or not for a chemical test if they suspect drugs they can request a
blood test if they only suspect alcohol you have a right to a breath test
your meds should not show very high or at all on a breath test if your
breath test is low you should be let go go on your way
With all due respect, if you're taking enough of your medication that you're concerned that you are anywhere near the legal limit, don't drive. As Mr. Fremont said essentially, you shouldn't have an amount of alcohol [ethanol] in any medication that would put you anywhere near the 0.08% limit. However, if you are taking a medication with various ingredients that can cause sedative effects, it's not a DUI checkpoint that is your primary concern. If you are involved in an accident -- even if it's not your fault -- it can be a potential felony case if someone is injured. If the police arrest you for being under the influence, the argument can be made under Vehicle Code § 23153(a) that you are under the COMBINED influence of alcohol and drugs. Whether the prosecutor wins that argument is another story, but you end up having to pay large sums of money to defend the case properly (and possibly lose that case, if not handled properly); let alone putting yourself through months of a stressful DUI defense (or even vehicular manslaughter defense ~ it does happen and they will prosecute you for the slightest impairment argument). The best possible advice any lawyer can give you is to simply avoid the possibility altogether. Not the sexiest answer, but the most pragmatic.