“Your License Or Your Blood?” DUI Drug Testing Police Policy And Behavior
This article contains information on the following:
- Police procedure during a DUI arrest/charge
- How chemical tests, notably blood tests, can be requested and the cost of refusing
- How a blood test or a DRE-administered sobriety assessment, will impact your DUI charge or case
I Didn’t Agree To A Blood Test After A DUI Arrest In Marin County. Can I Still Be Convicted Of A Drug DUI?
When you are stopped for suspicion of Driving Under the Influence (DUI), officers can request a chemical test (blood or breath) to verify your state of driving. What few drivers understand, however, is what happens if you refuse.
First, officers will assess your driving and behavior, then they might give you a preliminary breath test. If you refuse one, or if they see there is no alcohol in your system but you are acting in ways that make them think you might be on drugs, they will arrest you for a DUI and require a blood test. If you still refuse to do the test, they will get a warrant from the judge.
Can The Police Force Me To Take A Blood Test After A DUI Arrest?
To “force” you to give your blood for a drug test, police will go to the judge on duty and tell them why they need the judge’s permission to draw your blood (ultimately because the evidence is disappearing).
The police are supposed to show you the signed warrant, saying the court is ordering you to take the test. If you refuse to do so, in some circumstances the officers can hold you down and do a forced blood draw, if not, they can choose not to draw the blood and still try to charge you with a DUI, only without the evidence from the blood test results.
If you continue to refuse the test after a judge has issued the warrant, you will have to surrender your driver’s license for a year (which can be worse than the penalties associated with whatever you have been charged with).
What Happens If The Police Decide To File DUI Drug Charges?
Typically, once they have done the blood or breath test, if you are over the therapeutic level and/or if they have other evidence, the police will hand over the case to the DA to file charges. They are the ones who will try to prosecute you and convict you of DUI (of drugs).
This is the point at which you need someone on your side, a DUI defense attorney, preferably someone specialized like Aaron Bortel, who practices DUI law or DUI defense in Marin County and in the San Francisco Bay area. Someone with experience in the court systems and the Department of Motor Vehicles to try to get the charges dropped and/or save your license.
How Can A DUI Defense Attorney Help Me If I Am Charged?
A good defense attorney can make all the difference. They will put the burden on the DA’s office to make sure that they can show all the elements of the offense are present and try to get elements of their case against you disputed or thrown out.
The DA will then have to show, beyond a reasonable doubt, that you were driving and that while you were driving you were either at or over 0.08 blood alcohol level or that you were under the influence of alcohol or drugs or both. A DUI defense attorney will fight them every step of the way, and only once the DA has done all that despite it, can be convicted of A DUI.
One of the many questions they can help you answer is, of course, the question of a chemical test. Unfortunately, most people only think to ask these questions after they have been arrested, but it is worth understanding your rights beforehand.
Do I Have To Take A Chemical Test After A DUI Arrest In Marin County?
No, you do not (as outlined above) have to take a blood test. But if you do not, you are likely to lose your license for a year.
There will be a hearing with the DMV, but you will probably lose that license for a year if you refuse to take the chemical test after you’ve been arrested for A DUI and the police admonish you.
If they properly admonish you then typically the DMV in those cases will take away your license for a year, though a strong DUI defense attorney will be able to win a small percentage of those cases.
There are different ways to win at the DMV hearing, but nothing is guaranteed as they are very tough cases.
Instead, a good DUI attorney will usually recommend in these cases you not refuse the chemical test because the penalty for the offense, especially driving-wise, is typically going to be a lot less than if you refuse the chemical test.
How Can Law Enforcement In Marin County Prove I Was Driving On Drugs Without Consent For A Blood Test?
Much of the time, in Marin County, the police will get a warrant, do a forced blood draw, and then use the results of that test against you. They are allowed, however, to charge you even if they were not able to do the blood test.
This can occur because you’re struggling too much, or because they don’t have a phlebotomist available, or officers are not around/available to hold you down. There was a sharp uptake in those last types of cases during the Covid pandemic when officers did not want to get too close to suspects!
If that does happen, and no blood test occurs, they can still try to convict you.
What Evidence Can The Police Use Against Me In A DUI Case Without A Blood Test?
There are several things they can, and will, try to use against you.
Are DRE (Drug Recognition Evaluations) A Reliable Alternative To Chemical Tests?
One long standing tool is what’s called a DRE (Drug Recognition Evaluator) examination.
The police will call on a drug recognition expert who’s usually just a California Highway Patrol officer who has had extra training. This is not a civilian or scientist. The training and their procedure to determine what you are on are fairly unreliable and a competent DUI defense lawyer will help you attack them.
By accessing their rolling logs (stored data) and elements from their exams or tests we can show that their knowledge is not necessarily reliable. These are not exactly specialized experts. DRE officers have had some extra training but their reports can be undermined or contested; if they are testifying in a trial situation they will be a focal target of your defense.
How Is The Drug Recognition Evaluation Different From A Basic Sobriety Test?
While DRE officers will often administer the basic three-step sobriety test most of us are familiar with from the media (assessing things like balance and coordination) the full battery of tests is considerably more elaborate with up to 12 more steps.
DRE officers verify physical indicators like your pulse or the rigidity of your skin. But the tests don’t stop there. They will put you in a dark room, then check your pupils and they’ll do all the regular field sobriety tests again (these are only admissible in court if they are administered by an “expert” like a DRE officer).
Finally, they will try to predict what you are on.
How Will The Police Be Able To Charge Me For DUI On Drugs Without A Blood Test?
Among the many things officers will do before or during your arrest is ask you what drugs you have taken because, at the end of the DRE examination, they need to make a prediction. So if you have told them, that makes the prediction much easier.
While these tests can sometimes be accurate even without your confession, they remain some of the most inaccurate types of testing ever produced for courtrooms. It is unwise to call any assessment receivable in court a joke, but many would; especially when compared to complete scientific testing and accuracy, which citizens in juries want to see.
Nevertheless, they are receivable, and can and will be used against you, though a competent DUI defense attorney will certainly see them as a potential weakness.
What Else Can The DA Use To Secure A Drug DUI Conviction?
If a drug test was not done, the DRE exam and sobriety test are just some of the DA’s options and evidence to use against you. In addition, they will look at your driving, perhaps using video footage, or even talk about your demeanor. They can talk about your speech, your eyes, your balance, and most importantly, they can use anything you told them.
If you told them that you had done certain drugs or taken certain medication or mixed either with alcohol they can and will use that against you. In these situations, if you decide not to do a test (which for reasons we have already discussed is rarely a good idea) then the best thing that you can do is make sure you do not give them any evidence.
What Should I Do If I Am Arrested Or Charged With A Drug DUI?
First and foremost, do not answer the police officer’s questions other than to give them your license and the basic information about you that they need. Anything about what you took, when you took it (do not even mention past drug use), even what you ate last, anything really, you are not legally required to answer.
The more you give the police or prosecutor, the more they have to use against you. Telling a police officer in Marin County that you respectfully decline to answer their questions is allowed. No matter what any officer says, there is nothing wrong with it and it is your right.
It is not an admission of anything to say you have been told by a lawyer that you’re not required to answer. The only thing that you’re required to do once they arrest you for A DUI is either a breath (for alcohol) or blood test (for drugs), and they won’t give you the option of a breath test if they think only drugs are involved. If they do only the breath test and you’ve only taken drugs, a breath test is going to be a lot less conclusive than a blood test.
But if you refuse to do that chemical test after arrest, once they properly admonish you, then you will lose your license for a year. Though a DUI lawyer can help you fight that it is a difficult, uphill, fight. Refusing a test is often going to be more problematic for you, especially if you need that driver’s license.
One step you can and should always do however is to immediately contact a lawyer. Preferably one with a specialty in Drug DUI charges, who understands the police procedures as well as the laws involved.
For more information on Facing Drug DUI Charges In Marin County, CA, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 886-6333 today.