In previous posts, the Los Angeles DUI attorney discussed the defense of a Refusal DUI in Los Angeles. Here, Los Angeles DUI Attorney will focus on a special situation when a driver is arrested for Alcohol and Drug or just Drug DUI and then refuses to submit to a chemical test.
Vehicle Code section 23612 deals with this situation:
1ST observed that under VC 23612(2)(a) any driver who is arrested for a drug (or alcohol and drug) DUI still has a choice of breath or blood test and if this choice is not given, the police officer violated the law. Thus failure to offer an option should be a ground to set aside a suspension.
(2) (A) If the person is lawfully arrested for driving under the influence of an alcoholic beverage, the person has the choice of whether the test shall be of his or her blood or breath and the officer shall advise the person that he or she has that choice. If the person arrested either is incapable, or states that he or she is incapable, of completing the chosen test, the person shall submit to the remaining test. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.
VC 23612(a)(2)(B) confirm that in stating:
(B) If the person is lawfully arrested for driving under the influence of any drug or the combined influence of an alcoholic beverage and any drug, the person has the choice of whether the test shall be of his or her blood or breath, and the officer shall advise the person that he or she has that choice.
And then the person (after submitting to a breath test) can be still made to submit to a blood test.
(C) A person who chooses to submit to a breath test may also be requested to submit to a blood test if the officer has reasonable cause to believe that the person was driving under the influence of a drug or the combined influence of an alcoholic beverage and a drug and if the officer has reasonable cause to believe that a blood test will reveal evidence of the person being under the influence. The officer shall state in his or her report the facts upon which those beliefs are based. The officer shall advise the person that he or she is required to submit to an additional test. The person shall submit to and complete a blood test. If the person arrested is incapable of completing the blood test, the person shall submit to and complete a urine test.
Thus, a person who is arrested for a drug DUI must be offered a choice and if he chooses a breath test and the officer is not satisfied with the results of that, the officer can demand a blood test. However, if the officer is not offering a breath test (and many don’t because they believe that it will not produce evidence of impairment) then Los Angeles DUI Attorney should ask for a set aside during the DMV hearing.
For case-specific questions please call Los Angeles DUI attorney so we can explain to you how to win your DMV case in Los Angeles. Los Angeles DUI Attorney provides quality defense at an affordable price. Call Los Angeles Criminal Defense Attorney at: 323-464-6424 to talk directly to an attorney for a free immediate consultation.