There are misconceptions and confusion regarding the legal obligations and rights a driver has regarding breath tests as required under laws regulating drinking and driving and with good reason. Initially, there are two separate breath tests that law enforcement may administer during different phases of the DUI investigative process. Secondly, one is legally required, and the other is optional. And finally, the police are not clear in explaining the difference.
Breath Test in the Field
If a driver is permissibly stopped by an Orange County sheriff who has reason to suspect that driver has consumed alcohol, a DUI investigation may be initiated. It begins with questioning of the driver and entails the officer’s observation of the driver for signs of intoxication. Based on those results, the driver may be asked to undergo one or more field sobriety tests. One of the more common FSTs is a field breathalyzer test.
A typical scenario unfolds as the officer asks the driver to blow into a portable breath-testing machine. Many drivers believe they have not had too much to drink, are perfectly capable of driving and the breathalyzer results will support that assumption. In reality, on the contrary, the officer is administering the breathalyzer to gather further evidence to establish the probable cause necessary to make a DUI arrest. What an Orange County law enforcement officer will never tell the driver, however, is that this field breath test is entirely voluntary and can be refused without penalty.
Breath Test Subsequent to Arrest
After arrest, a chemical test of breath, blood or urine is administered to provide evidence of the suspect’s BAC. If a breath test is the chosen method, unlike the field test, this test is legally required under California statute. Known as implied consent, a refusal by the suspect at this stage is a violation of law and may be punished more severally than would be a test result that exceeds the legal limit.
Practical Considerations
Many experienced Orange County DUI attorneys will advise that is prudent for a driver to politely decline the invitation to take a field breathalyzer test citing advice of counsel as the reason. Based on other observations and what the driver may have told the officer, an arrest may nonetheless follow, but if no breathalyzer was taken, there can be no evidence of those results that can be used against the driver as proof of impairment.
