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Chemical Testing

Chemical testing is a key issue in every California DUI case. Accused drunk drivers often fear that if the machine says someone is above the legal limit, they are guilty, period. However, there are many challenges to the validity of blood, breath and urine tests in driving under the influence cases. An experienced DUI defense attorney from The Kavinoky Law Firm has an arsenal of proven strategies available to attack the results of chemical tests in driving while intoxicated cases.

Most California DUI arrests result in two separate charges – violation of the “common law” drinking and driving laws, and violation of the “per se” laws. Common law drunk driving charges hinge on whether the motorist was impaired by alcohol and/or drugs, and was unable to operate a vehicle with the same caution as a sober person.

A per se charge focuses solely on whether the driver’s blood or breath alcohol content (BAC) was above the legal limit, now.08 percent in all 50 states. When attempting to prove a per se charge, the prosecutor focuses on the driver’s BAC and per se do not attempt to prove that the driver was impaired or affected by alcohol.

Chemical testing of the blood, breath or urine is therefore central to the per se charge, where the defendant is accused of driving above the legal limit. However, chemical tests are also a critical aspect of the common law drunk driving case, which focuses on whether or not the driver was impaired. This is because many experts believe that all drivers are impaired once they are above a certain BAC.

Some forensic experts believe that everyone is impaired when their BAC reaches.10 percent, some .08 percent, and the most conservative think that everyone is under the influence at .05 percent BAC. Therefore, it is vital that a DUI defense lawyer be able to successfully address these issues to advance their client’s cause.

Chemical testing is so critical in California DUI ┬ácases that both the DMV and the courts punish drivers who refuse to submit to chemical testing when lawfully requested after a drunk driving arrest. For example, a refusal to test following a drunk driving arrest may result in a driver’s license suspension of one year for a first offense DUI.

In a drunk driving court case, a chemical test refusal is a “special allegation” that, if proven, results in mandatory jail terms, lengthier alcohol education programs, and a jury instruction that allows jurors to consider the refusal to test as consciousness of guilt.

Chemical testing in drunk driving cases or DUI drug arrests involves the testing of bodily fluids – blood, breath, or urine. In most states, when someone is accused of driving under the influence of alcohol, he or she has a right to take either a breath or a blood test.

Where driving under the influence of drugs is suspected, the chemical test choices will usually include blood or urine. Generally, there is no right to a urine test in drunk driving cases. Urine testing in drinking and driving cases has been deemed too unreliable to withstand courtroom challenges.

There are many effective defense challenges to chemical tests in drunk driving cases. While a chemical test may accurately determine BAC at the time of testing, it is not conclusive evidence of BAC at the time of driving. Remember, it isn’t against the law to exceed the legal limit while in a police station; the crime is driving under the influence, or driving above the legal limit, not having a BAC above the legal limit at a later time. Because alcohol levels change over time, this is a critical point to understand.

Chemical testing for alcohol or drugs isn’t always accurate – far from it. There are challenges to breath tests, forensic blood tests, and forensic urine tests. Testing in DUI drugs cases is even more challenging than testing for alcohol levels in a drunk driving case. Drug tests search for metabolites in the blood or urine, not the drug itself. Plus, there are no “per se” limits in drug cases, and because of the time in which many drugs stay in the system, it is incredibly difficult to demonstrate that a person was impaired at the time of driving.

Many drivers accused of DUI believe that a chemical test that shows a BAC greater than .08 percent means a slam-dunk conviction, but that’s simply not the case. However, effectively fighting a driving under the influence case isn’t for amateurs. It’s critical to consult with a California criminal defense attorney with experience fighting drunk driving cases. A skilled attorney can challenge the results of blood, breath, or urine tests, and plan a strategy to fight a drunk driving case.


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