Faulty DUI Chemical Tests In California
Defending Against DUI Charges
As in other states, drivers in California can be pulled over by the police on suspicion of DUI. Law enforcement administers two types of breath tests at two different stages of the process – a preliminary roadside breath test during a traffic stop, and a post-arrest evidentiary breath test. You are not required to submit to the roadside breath test in California unless you are under the age of 21 or on DUI probation. We recommend that you decline. If you are arrested and asked to take a blood alcohol concentration (BAC) test, we recommend that you decline the breath test and ask to take a blood alcohol test instead.
Why Should You Decline the Breath Test?
DUI breath tests are quick and noninvasive, but they are also subject to a range of errors and issues. Some of the problems associated with alcohol breath testing include the following:
- Factors such as a KETO (low carb, high protein) diet and medical conditions such as gastroesophageal reflux disease (GERD) can affect the results.
- The police officer administering the breath test may not follow required testing procedures.
- Residual mouth alcohol, rising blood alcohol, and other phenomena can artificially inflate BAC levels with breath testing.
What Makes Blood Alcohol Testing a Better Option?
Blood testing has one major advantage over breath testing. Under the law, a portion of the blood drawn from your body must be retained by law enforcement for one year after collection. This portion must be made available to you when your attorney files a blood-split motion with the court. Your portion of the blood sample can be submitted to a private laboratory for independent analysis. An independent lab can determine if the blood sample:
- Was improperly handled or refrigerated
- Had been contaminated
- Had fermented (which increases alcohol content)
- Was affected in any other way that would have a bearing on police lab findings
- Showed a BAC of less than .08%
What Are the Possible Defenses for a BAC Test?
Legal defenses against BAC test results will depend on the circumstances in your case. Common defenses include the following:
- Title 17 violations: Regulations governing DUI chemical testing procedures are contained in Title 17 of the California Code of Regulations. Law enforcement officers and their laboratories are required to follow Title 17 procedures when collecting or processing DUI breath samples. When they fail to do so, our Los Angeles criminal defense lawyers can file a motion with the court to exclude breath testing results as evidence.
- Medical conditions and dietary issues: Some medical conditions, such as GERD or acid reflux, can cause stomach acids to flow back into the mouth. Breathalyzers can read the stomach acid as alcohol. In addition, low carb-high protein diets that force the body to use stored fat as an energy source create ketones as a by-product. Ketones are chemically similar to acetones, and many breath testing devices cannot distinguish reliably between acetone and ethyl alcohol.
- Residual mouth alcohol: When a person consumes an alcoholic beverage, some residual alcohol can remain in the mouth for approximately 15 to 20 minutes. This residual alcohol can be picked up by a breath test and elevate BAC readings.
- Rising blood alcohol: Alcohol levels continue to rise for 30 to 45 minutes after drinking, and for as long as two hours in some cases. In the time it takes for a DUI traffic stop, investigation, and arrest to occur, blood alcohol levels may have risen to above the legal limit, even though they were below the legal limit while you were driving.
If you are facing DUI charges in Los Angeles, call Werksman Jackson & Quinn LLP at (213) 688-0460. When you hire us, you are getting an entire legal team of talented DUI defense attorneys to help you fight the charges.
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Phone: (213) 688-0460 
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Attorney Mark Werksman’s 29 year old client was falsely accused of molesting two neighborhood children and was subsequently charged with felony child molestation, with a significant prison sentence hanging over his head should he be convicted. Instead, at the preliminary hearing Werksman was able to convince the court to grant his client a complete dismissal of any charges. - Decision Set Aside
Client, a college student in a faulty Title IX case, was awarded $130,000 in attorney fees. - Probation with No Jail Time for Drug Money Laundering Charge
Wilmington man accused in New York federal court of laundering drug money through the sale of laptop computers. Mark was able to get the case transferred to federal court in Los Angeles, where he convinced the United States Attorney to reduce the charges. His client was sentenced to probation with no jail time on a misdemeanor conviction.
