California has been plagued with drunk driving for years, and authorities are implementing measures to combat these drivers. Many car accidents in San Jose are attributed to drunk driving. In May this year, a drunk woman with a blood alcohol level of 0.08% caused a fatal crash on Highway 17, killing a seventeen-year-old. Alcohol impairment led her to drive on the wrong side for about four miles before this wayward minivan crashed into a vehicle carrying five teens.

These unfortunate events have prompted authorities to be more stringent with people caught operating vehicles under the influence. San Jose DUI Attorney Law Firm specializes in helping clients who are facing charges for drunk driving. We are here to help you avoid harsh penalties like extended jail terms. In this article, we discuss how officers determine your blood alcohol content and how we can help you fend off these charges.

The California Vehicle Code

The California Vehicle Code explains two distinct offenses for driving under the influence:

  • Section 23152(a) unequivocally outlaws operating a vehicle while intoxicated with alcohol.
  • Section 23152(b) deems it unlawful for a person who has a blood alcohol content (BAC) of 0.08 percent or more to drive.

San Jose DUI by Blood Alcohol Content

The city of San Jose observes different categories of BAC as per the driver's age:

  • People aged 21 years or more (0.08% or higher)
  • Owners of commercial driver's licenses (0.04% or higher)
  • Adults on probation for a DUI offense (0.04% or higher)
  • People below the age of 21 (0.01% or higher)

What is "Per Se Count" Law in California?

California Vehicle Code section 23152(b) stipulates that a driver is legally impaired if their blood alcohol content (BAC) is 0.08% or more. This "per se count" law requires the prosecutor to prove you were driving with a BAC of 0.08% or higher at the time.

Patrol officers usually determine the blood alcohol level using DUI breath and blood tests, and this must be done immediately after stopping you. In the next section, we cover the range of tests that officers administer to determine if you have any alcohol in your blood that could impair your driving skills.

  1. Breathalyzer Test

    Research deduces that 92 – 98% of alcohol passes through the digestive system to be broken down by the liver, but roughly 2 – 8% escapes through body processes like breathing. Some beer will seep into your blood through the stomach walls before digestion takes place, and this alcohol-laden blood circulates into your system.

    The liver generally processes one serving of alcohol per hour. If you take more than the standard amount of alcohol per drinking session, more alcohol will seep into the bloodstream. Circulation will transmit this alcohol to your heart and lungs, and the levels of alcohol in your lungs equal the amount of undigested alcohol in the blood. A breathalyzer test measures how much alcohol is present in your bloodstream at the time of the arrest. This figure is based on how your body metabolizes alcohol, and the results can be surprising.

    This test can measure alcohol content up to 24 hours from the time of drinking, which means drinking overnight, then driving to work in the morning can get you into trouble. The same applies when people drink over the weekend then drive the following day. We have seen clients facing DUI charges even when they haven't consumed alcohol in the past 12 hours. The state of California allows two forms of testing to determine if a driver is impaired or not:

  2. Preliminary Alcohol Screening (PAS) Test

    A PAS test is performed at any stop after being pulled over by the traffic police. This initial test must be done before a DUI suspect is apprehended, and it is not compulsory. You are at liberty to refuse to take a preliminary alcohol screening test without facing the consequences. Nevertheless, anyone with active probation for a DUI or a person under 21 years cannot legally decline this test.

    Contravening this law will attract an automatic license suspension regardless of whether the court finds you guilty or not. The officer will administer the test using a hand-held instrument to check the level of alcohol in your breath, and we discuss how a breathalyzer functions in greater detail shortly.

  3. Post-arrest Evidentiary Breath Test (PEBT)

    If the findings from a PAS test are damning, you are now required to take an evidentiary exam after the arrest is made official. In some parts of California, law enforcement officers use a Portable Evidential Breath Testing System (PEBT). This test applies a similar mechanism as the equipment used to conduct preliminary screening. The only functional difference is that a PEBT is usually connected to a printer by a cable or Bluetooth, so it now operates as an evidentiary unit.

How Does a Breathalyzer Work?

A breathalyzer is a device that is developed to measure alcohol content from the deep lung air where the majority of the drink is concentrated. When you blow into the breathalyzer, the breath you expire enters into a sample chamber. The alcohol transmitted from the blood into your breath will also be captured here. The machine samples the drink as soon as it enters the chambers and continues this process at an estimated frequency of 37 times per second.

This monitoring carries on until you get a consistent reading for three seconds, drawing air from the deepest parts of your lungs. The machine will then acknowledge receiving a viable sample and then purge itself to the next phase of calibration. The breath inside the chamber is examined under infrared beams, and the IR detector measures how much air was absorbed. It then determines how much micrograms of alcohol are present in every 100ml of breath.

Usually, if the breathalyzer changes color from reddish-orange to green, it means there is still alcohol present in your bloodstream. Levels of 40% for every 100ml of breath typically equate to 0.08%, and this calculation is what determines if your blood alcohol level contravenes California's regulations. Once the device gives specific results for your case, the officer can now charge you with drunk driving or release you.

The breathalyzer is designed to detect mouth alcohol, such as from using an alcohol-based mouthwash. In this case, the machine will detect higher levels of alcohol at the beginning of the process, then a dip as it samples your breath from more rooted in the lungs. You cannot cheat a breathalyzer using a catalyst or placing your tongue over the mouthpiece, and for this reason, law enforcement deems the results accurate.

Implied Consent for a Breathalyzer Test

All jurisdictions, including San Jose, have "implied consent laws," which means that drivers automatically consent to a chemical test to examine your blood, urine, or breath for anyone with a valid license. Similarly, applying for a permit to drive on the state's public roadways means you have consented to a preliminary breath test. California's implied consent law stipulates that if a patrol officer has probable cause to charge you with drunk driving, you must submit to blood alcohol testing.

Drivers who decline the Preliminary Alcohol Screening (PAS) using a manual or automatic device attract more legal problems. You could have your license suspended for one, two, or three years for a first, second, or third offense. Noncompliant drivers can also serve jail time, pay fines upon the judge's discretion, and be required to install an ignition interlock device in your car for a predetermined duration.

Please note, you don't have a right to consult with an attorney before submitting to a breath test after being pulled over by patrol officers. If you decline to take this test, the attending officer will charge you with failure to comply with the implied consent law. We advise our clients to yield in these situations as noncompliance only makes things worse once drunk driving charges are made official.

Can I Choose between Blood and Breath Test?

Once traffic officers stop you for a suspected DUI, the law permits you to choose between drawing blood or taking a breath test to determine if you are impaired or not. SAN Jose DUI Attorney Law Firm advises clients to avoid a breath test and request a blood test instead to make your case easier. Nonetheless, you cannot evoke your right to select one test or another under the following circumstances:

  • The attending officer reasonably believes you were intoxicated by alcohol or other substances
  • If you cannot provide a sufficient air sample for a breath test
  • If you are drifting in and out of consciousness, perhaps due to intoxication
  • If you urgently need medical intervention and the facility lacks a breath-testing kit

Title 17 Regulations and their Effect on DUI Breath Tests

Title 17 of the California Code of Regulations regulates the processes that law enforcement and testing laboratories should adhere to when collecting and testing breath samples. Your attorney will be keen to see if due process was followed and if there are anomalies, they can present these errors in court. Our DUI attorneys have served clients in these situations and helped them walk away scot-free. Title 17 stipulates the following guidelines:

  • The testing device should be fully functional
  • The device must be calibrated after ten days or after using it 150 times
  • Personnel handling this device must be adequately trained for the job
  • The laboratory must keep detailed staff records, equipment, and test findings
  • Allow a waiting period of 15 minutes before the test. During this time, you cannot smoke, drink, or consume anything, including food. Body processes like throwing up, burping, or regurgitating are also prohibited.
  • The technician must collect air from deep inside your lungs
  • They must collect two breath samples with a variation of less than 0.02g/100ml of alcohol

As your defense attorneys, we shall be on the lookout for any violation of Title 17 guidelines like allowing non-trained personnel collects the breath sample or malfunctioning equipment. Record keeping is yet another area where we encounter gross violations of this law, and we can use this to exonerate you. The arresting officer must also follow due process when conducting police business. Your legal counsel will check if the office fulfilled this mandate by doing the following:

  • Checked to see if you had something in your mouth
  • Put you under observation for 15 minutes, uninterrupted, prior to testing
  • Jotted down the start and end time of this observation period
  • Connected the mouthpiece of the testing device correctly
  • Jotted down each time you blew air into the device

What Factors Lead to Inaccurate DUI Breath Test Results?

Despite following Title 17 guidelines for collecting breath tests, the findings are not always accurate. We have seen clients charged with DUIs even when they insist they were not impaired. Pre-existing medical conditions like diabetes have been known to give incorrect test results. As well, people who regularly consume diets laden with high protein observe a low carbohydrate diet can easily fall victim to misleading test results.

The following factors can also contribute to faulty breath test results:

  • Residual of mouth alcohol after consuming alcoholic beverages, or using alcohol-based mouthwash
  • If the test is administered inside 30 – 45 minutes after your last drink, rising blood alcohol can influence the findings
  • Radiofrequency interference can tamper with the testing device
  • Inhaling chemicals acetone before the test can give faulty outcomes

Blood Test

Alcohol is digested on an hourly basis and therefore doesn't remain in the bloodstream for long. Thus, a blood test can only detect levels of drink up to 12 hours after consumption. A blood test is a preferred method of determining if a person was drunk when the test was conducted. It is also applicable when the person is unable to provide a sufficient breath sample for one reason or another, or they are unconscious.

If the health facility does not have a functional breathalyzer, they will suggest a blood test. DUI blood tests indicate the exact levels of alcohol in your blood and for this reason, are deemed more precise than breath tests. The laboratory usually reserves a sample of your blood for retesting if necessary.

Title 17 Guidelines on DUI Blood Tests

Title 17 guidelines outline the approved blood testing protocols that laboratories and law enforcement must follow. If these protocols are violated, the validity of your blood test is compromised. Your DUI attorney will ensure that due process was followed and if there is any suspicious activity, they can use it as grounds for dismissal. The regulations are as follows:

  • Only trained medical personnel or technician should gather the sample, and this must be done after you are apprehended
  • Sterilize the draw site with a non-alcohol based compound to avoid contaminating the sample with external alcohol
  • Have an anticoagulant to stop the blood from clotting inside the vial and keep it free from contaminants
  • Do not clean or store reusable equipment with vaporous organic solvents or alcohol
  • The identity of your sample and recording should be upheld throughout the chain to avoid confusion with another person's blood sample.

How Valid are DUI Blood Test Results?

The law postulates that your test findings were gathered in the right manner, and if you suspect otherwise, you must demonstrate abuse of Title 17 regulations. Presenting evidence of a breach does not automatically invalidate the findings unless the process infringed on your civil rights. For instance, the police cannot gather a blood specimen against your will.

They can only legally obtain a sample with a valid warrant or under extraordinary circumstances. An officer will seek a court order if you caused an accident or you are unconscious. Once they have signed authorization and you still refuse to yield to drawing blood, they can use justifiable force to collect a sample. For example, they can restrain you, so you remain still enough for the test.

While declining a blood test is not a criminal act in California, this resistance could earn harsher penalties if the court finds you guilty. It will also trigger a compulsory license suspension, even if the case doesn’t hold. We advise clients to submit to a blood test under reasonable circumstances, such as causing a crash after consuming alcohol, also if they still deem themselves fit to drive. The goal is to mitigate the aftermath of court proceedings, so your life is not disrupted more than necessary.

Title 17 requires that a sample of your blood is retained for up to one year to allow for autonomous testing should your legal counsel demand another test. They must file a "blood split motion" in a San Jose court to have the judge grant permission to have the sample analyzed at your chosen laboratory. As you defense counsel, we shall determine if the specimen:

  • Registered a BAC below 0.08%
  • Had fermented or had contaminants
  • Was mishandled or stored improperly
  • Had other integrity violations that could interfere with police findings

How Can I Contest DUI Blood Test Findings?

If we determine that something was amiss with the initial testing, the next step is challenging the police report to have your DUI charges dismissed. There are three strategies we can explore:

  • Challenge the flawed conclusions to have the case thrown out or at least negotiate a plea
  • Filing a motion to exclude the erroneous results from the discovery
  • Prove bad policing such as pulling you over without probable cause
  • Field Sobriety Tests

In many scenarios, a patrol officer will apply other forms of testing to determine if you have alcohol in your system before proceeding to test your breath or alcohol. Once you are pulled over by patrol officers, they will ask for your license and registration number, and ask a few routine questions. If the officer suspects alcohol or other substances could impair you, they will ask you to step outside the vehicle for a field sobriety test.

Field sobriety tests (FSTs) or roadside sobriety tests are applied by law enforcement to impose DUI laws, and they are conducted in a series of steps. They are aimed at determining your balance, attentiveness, and physical ability to operate an automobile.  The officer will administer the following tests to determine if you are impaired:

  • Horizontal Gaze Nystagmus – ordinary people have an involuntary jerking of the eyes when they look to one side or another. However, the jerking movement increases when someone is under the influence of alcohol or other chemical substances. There are three tell-tale signs of intoxication that can help the officer know if you are impaired. Inability to follow a moving item with ease, unconventional darting of eyes, and jerking eyes at a 45-degree angle from the midpoint.
  • One-Leg Stand – the officer will ask you to stand with one foot elevated six inches above the ground and counted for 30 seconds. Failure to hold still for 30 seconds will be interpreted as probable impairment.
  • Walk and Turn – this test gauges the driver's ability to focus on one task without diverting their attention. The officer may ask you to walk nine steps in a straight line then repeat these steps in the opposite direction. If you cannot do this correctly, they can use their discretion to charge you with drunk driving.
  • Romberg Balance Test – this exam evaluates a person's neurological function. While the NHTSA does not approve it, you may find law enforcement using it to determine impairment. Romberg test checks for three bodily functions: vestibular, vision, and proprioception. If someone is unable to balance using two faculties – perhaps too much swaying or body tremors, they are considered impaired and, therefore, unfit to drive.

This test is not standardized, which means there is no formal way of administering it or scoring the findings. If you are charged with a DUI based on the Romberg balance test, San Jose DUI Attorney Law Firm will contest the results and have the charges nullified.

Find a DUI Attorney Near Me

If you have been arrested for a DUI in San Jose, you need proper legal representation to avoid harsh penalties. Your attorney will attend the DMV hearing to safeguard your driving privileges or at least get a restricted license. The San Jose DUI Attorney Law Firm advises clients that a win at the DMV hearing comes in handy in negotiating a fair deal in the criminal proceedings. We shall present evidence that the case against you is based on inaccurate information or other technicalities that will introduce reasonable doubt. Contact us at 408-777-6630 to speak to our resident DUI experts.