Police Office Holds Breathalyzer Device


Brownstein Law Group, P.C. Jan. 14, 2022

We’ve just finished the year-end holiday season when spirits can be high in more ways than one. It’s not unusual for police to take extra steps during holidays of any type to look out for drivers operating vehicles under the influence of alcohol or drugs.

Regardless of the time of the year, however, police rely on different tests — including their own observation of how you’ve been driving — to determine if your driving has been impaired by alcohol. One such test is the timeless one known as the field sobriety test, in which they take the driver through various physical and mental challenges on the street or sidewalk.

Another is the use of the breathalyzer, which is employed to measure the blood alcohol content (BAC) in the driver’s system. Finally comes the blood test, or sometimes a urine test, which is administered after the police have taken you to the station.

The best option when you’ve been consuming alcohol is to have a sober party drive for you or to take Uber, Lyft, or a taxi, but if you have been pulled over after drinking, you should know and understand your rights. Some tests you can refuse without penalty, others you cannot.

If you’ve been arrested or charged with driving under the influence (DUI) in or around San Rafael, California, contact the Brownstein Law Group, P.C. The team will examine police and prosecutor evidence and tactics and develop a strong defense aimed at achieving the best possible outcome. Brownstein Law Group, P.C. proudly serves clients throughout San Francisco, Novato, Petaluma, and Marin County.

Implied Consent Under California Law

When you are granted a driver’s license in California, you give what is called your “implied consent” to take a blood or breath test if an officer suspects you of driving under the influence. The blood test will measure your blood alcohol content, and if it is 0.08% or higher, it is considered to be proof of driving under the influence. Often a urine test will be substituted if the suspect is on anticoagulants or has hemophilia.

In practice, the officer who stops you will often give you a choice between a breathalyzer test and a chemical test of your blood. The first offer of a breathalyzer test is called a preliminary alcohol screening (PAS). This test you can decline, but the officer may very well arrest you anyway. Once you've been arrested, the breathalyzer test then becomes mandatory.

If you refuse any of the tests — breathalyzer, blood, or urine — after being arrested, you can face additional penalties, including:

  • An additional 48 hours in jail

  • A one-year suspension of your driver’s license

  • An extra six months of DUI school

Field Sobriety Tests vs. BAC Testing

If a police officer suspects you of driving while under the influence, whether by observing the erratic nature of your driving or by pulling you over for a traffic ticket and then observing that you may be impaired, they may ask you to participate in a field sobriety test.

There are no penalties for refusing this test, but the officer may then just arrest you anyway under suspicion of a DUI. It has often been said that an officer asking you to submit to a field sobriety test has already concluded you’ve been driving under the influence.

The National Highway Transportation Safety Administration has singled out three field sobriety tests as being accurate - we don't always agree. These are:

  • The horizontal gaze nystagmus (HGN) test (88% accurate, according to the NHTSA)

  • Walk-and-turn (WAT) test (79% accurate, according to the NHTSA)

  • One-leg stand (OLS) test (83% accurate, according to the NHTSA)

Several factors can skew the results, including the age of the person being tested, his or her health conditions, medications, the environment in which the test is administered, and other factors. These tests can therefore be challenged, but if you’re hauled in for a DUI, you will be given BAC tests in addition. A blood test is often employed because it can not only measure BAC but also detect the presence of drugs.

Administering the Field Sobriety Test

The horizontal gaze nystagmus is an involuntary jerking of the eyes when you follow an object. The police officer may use a pen or even a finger and ask you to follow its movement. If he observes a jerking of the eyes while you follow the object, that is considered an indication of being impaired.

The walk-and-turn test is also known as the nine-step test. You will be asked to walk on a straight line heel-to-toe and then turn and walk another nine steps backward. The police officer will watch to see if you adhere to the line, maintain your balance, or keep your heel to your toe, among other signs of impairment.

The one-leg stand is just that. You are asked to raise your foot six inches off the ground, look down at your foot, and hold your position while you count from 1001 to 1030.

Officers in California often employ other field sobriety tests that NHTSA does not rate as accurate, including the “finger-to-nose” test, which you’ve probably seen on countless TV dramas.

Again, there is no penalty for refusing to take a field sobriety test, but if the officer already suspects you’ve had a few too many, he may arrest you anyway. Even if you pass the test in your own eyes, you may get taken in for further tests.

Don’t Risk Your Future — Get the Guidance You Need

If you’ve been arrested or charged with a DUI, don’t just throw up your hands and conclude: “What can I do? They got me.”

With a solid defense, you may get the charge lessened or even dropped, or if you do go to trial, you may get reduced penalties. Remember, a DUI conviction becomes part of your criminal record, and it adds points to your driving record, which allows your insurance company to dramatically increase your premium or even cancel your policy.

An attorney can challenge the probable cause of the arrest, as well as the results of the testing. Breathalyzers have to be continually calibrated and administered according to strict standards. Even a blood sample can be subject to contamination while being handled.

If you’re facing a DUI in or around San Rafael and the Greater Bay Area, contact Brownstein Law Group, P.C. The team will work with you on creating a solid plan to pursue the best available result. Don’t leave your fate in the hands of the justice system. Obtain aggressive, experienced representation.