There are 3 typical chemical tests that a person may run across in the course of a DUI investigation.

  • The preliminary alcohol-screening test (PAS),
  • The evidential Breath Test (EPAS),
  • and The Blood Test
The PAS is described as being just another Field Sobriety Test (FST) and in entirely voluntary, just like the all of the other FST’s. However, the officer isn’t likely to tell you that you’re not required to do this test, just like he didn’t tell you that his other exercises were voluntary. The usual command is, “OK, I just have one more test that I need you to do.” Hopefully you didn’t do the other field tests, but if you did, don’t do this one!

Nothing pleases me more than getting a police report that has a big diagonal line through the test report section of the DUI report with the word “refused” written along it.

Once a person is arrested for a DUI, then the officer is supposed to tell you that because he believes you have been driving under the influence of alcohol that you are now required by state law to submit to a chemical test of your breath or blood and that you also have a right to refuse. But, if you refuse there can be additional consequences like the loss of your license for one, two or three years and other possible penalties. He is also supposed to tell you that the breath testing equipment does not retain a sample and that if you want a sample retained then you may submit to a blood test for retesting by you or your attorney.

So, why do I say these tests are illegal?

Because, either nobody tells you that the PAS of FST’s are voluntary and nobody usually gives you the advice that you do have an option to refuse the tests. But, more important than that is that Cops way too often attempt to influence you choice of test.

All too often I hear a client tell me that their option to chose a test was phrased like this, “we can do this the easy way or the hard way.” With a follow up that sounds like this, “I can have you do the breath test right here and then we can call somebody to come and pick you up, or if we have to do blood, I’ll take you to jail (or a hospital) and tow your vehicle.

Our United States Supreme Court (SCOTUS) says that this is coercion and when you are coerced into doing any of these tests, then it is not voluntary and therefore, NOT LEGAL.

One more word about Blood Tests, the SCOTUS told us nearly 50 years ago and recently repeated it again just a couple of years ago, that blood tests must be performed according to Accepted Medical Practices (AMP). And, California courts attempted to limit this by saying that so long as a blood test doesn’t subject you to possible pain or infection that is was performed correctly.

When you standing or sitting in the garage of the jail on filthy cement block benches and a guy comes up, grabs your arm and pokes you with a needle, chances are he hasn’t recently scrubbed his hands, he hasn’t used a new, unused tourniquet, didn’t lay a sterile cloth under your arm and certainly didn’t ask you any questions about your health or possible issues with you giving blood.

Think back to the last time you gave blood in a hospital setting. If your blood wasn’t taken with the same care and concern for your health, then it wasn’t done according to Accepted Medical Practices. And, if that’s the case then this test result can and should be thrown out and not be able to be used against you.