DUI Arrest: Should I Choose The Blood Test or The Breath Test?

If you are
arrested for a DUI in Orange County, you are obligated under California’s
implied consent law, found at California Vehicle Code Section 23612, to take either a blood test or a breath test to determine your blood-alcohol
content. You do NOT have the right to consult with your Orange County DUI defense Attorney before choosing which test to take.
Moreover, if you REFUSE to take either the breath test or the blood test, the
police can obtain a search warrant and take your blood by force. Not only will
the police have the blood evidence to support the DUI charge, but you will also
be charged with a refusal to take a blood or breath test. This will carry extra penalties,
including jail time, and a much longer license suspension from the DMV.

So, which
test should you take? Well, most DUI defense lawyers in Orange County agree that there is no “clear cut”
answer. A breath test is not as accurate as a blood test. But this inaccuracy
can work to your adventive IF you are in the elimination phase. That is, if all
of the alcohol you consumed has moved from your stomach to your blood and your
body is now eliminating that alcohol. If you are in the absorptive phase, where
all the alcohol has not yet been absorbed into your bloodstream, then the
breath test will actually read higher than your true blood-alcohol.

An advantage
of the breath test is that there are more defenses for your DUI Lawyer to work with in court. For example, a low carbohydrate diet
may cause a slightly higher reading on a breath test. Also, diabetes may also
cause a higher reading. Mouth alcohol, which is alcohol that has moved from the
stomach to the mouth, can also give a false high reading. These defenses are
NOT available with a blood test.

A major
disadvantage to the breath test is that it is usually given at the scene of the
arrest and thus close to the time of driving. A blood test on the other hand is
given at the police station, jail or hospital. It usually takes an hour or two
from the time of driving before a blood test can be given. This window of time
gives your DUI defense attorney room to argue that your blood
alcohol content at the time of driving was much lower than at the time the test
was given.

If you’ve
been arrested for a DUI, DUI
with injury, or DUI
with a prior DUI conviction, call The Law Offices of EJ Stopyro at (949)
559-5500 today for a free and confidential consultation. You can also visit us
online at www.ejesquire.com. We have
offices at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano,
CA 92675 and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.

 

 

DUI Punishment: Home Confinement or “House Arrest” is Less Available

Being
arrested for a DUI is a harrowing experience, to say the least. As an
experienced DUI defense Lawyer in Orange County I can tell you that most people who
are arrested for a first-offense DUI are pretty traumatized by the experience.
Typically, this is the first time they have been arrested, handcuffed, and
taken to the Orange County jail, where they spend around ten hours before they
are released. Even though the punishment for a typical first-offense DUI in
Orange County doesn’t include jail time, most of my clients who experience a
first-offense DUI arrest swear that it will never happen again.

Unfortunately,
it is a statistical fact known all too well to Orange County DUI Attorneys that a certain percentage of those who are arrested for
a first-offense DUI will be arrested for a second-offense DUI within ten years
of their first-offense DUI conviction. And unfortunately for them the
punishment in Orange County for a second-offense DUI is no slap on the wrist.
The typical jail sentence in Orange County for a second-offense DUI—where there
is no accident, child in the car, or excessive speed—is somewhere between 60
and 90 days in the Orange County jail.

Now, in the
past, a DUI defense attorney representing a person facing charges
for a second-offense DUI in Orange County could often get permission from the
court to allow their client to serve this 60 to 90 days as “home confinement”
or “secured electronic confinement” (“SEC”) instead of actual time in the
Orange County jail. Under this program, the defendant wore a GPS bracelet, was
allowed to leave their home to go to work and the mandatory Alcohol program, but was otherwise required to stay
home during their sentence. I can tell you from first-hand experience that
there is a night and day difference between serving jail time and home
confinement.

However, with
the changing of presiding judges in the Orange County courts that handle DUI
charges, the days of home confinement, house arrest or SEC are fading fast.
These days the judges are very reluctant to allow for home confinement. This
means that the alternatives to jail time that can be sought by an Orange County DUI lawyer are becoming slim. Some of the alternatives include
time in a Residential Alcohol Treatment facility, serving time in a private
jail or “pay and stay”, the DUI court program, or serving the jail sentence on
weekends. While none of these alternatives are as forgiving as home
confinement, they are still better than actually serving jail time.

Moreover,
while these remaining options are still, for the most part, available to most “standard”
second-offense DUI offenders—where there is no accident, child in the car, or
excessive speed—they are usually NOT available when the offense involved is a
third-offense DUI. In that case most judges will require jail time. And the
typical jail sentence for a third-offense DUI is about eight months in the
Orange County jail.

If you are
accused of a DUI in Orange County, call The Law Offices of EJ Stopyro at (949)
559-5500 for a free and confidential consultation with an experienced Orange County DUI defense attorney. You can also get information about
your DUI charge by visiting our website at www.ejesquire.com.
We have offices at 32072 Camino Capistrano, 2^nd floor, San Juan
Capistrano, CA 92675 and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA
92627.