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22 Jan

If I get stopped for a DUI which test should I choose?

Posted by David Jones on Jan 22, 2014


Which test should I choose: Breath or Blood?

A driver in California is required to take a breath or blood test if they have been arrested for DUI. This is because California is one of many states that follow an implied consent law. Generally, this law states that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving while intoxicated, you consent to taking a chemical test to determine your BAC. The test must be taken at the time of the driver's arrest and the officer should allow the driver to choose whether they want to do the breath or blood test. Refusing to submit to a chemical test will cause you to incur a one year license suspension.


If you choose the breath test, you will provide a sample by blowing into a breath device. Before starting the test, the officer should observe the driver for 15 minutes to make sure there is no burping or other bodily function that could lead to contents from your stomach from entering into your mouth. The officer should obtain two samples in order to check accuracy. If the officer notices a difference between the sample readings of more than .02, the tests should be deemed invalid. If, however, the two are within the limit, the machine will select the lower number as the reported BAC.


If you choose a blood test, a medical technician will draw the blood sample. This is usually done at a hospital. Once the blood is drawn, it is sent to a lab for testing to determine the Blood Alcohol Content (BAC).  Certain environmental factors, inadequate preservatives, or failure to properly store the blood sample may lead to inaccurate BAC results.


DUI attorneys differ on this answer and each case is different. There may be pros and cons to each, depending on the situation and each test can result in inaccurate results. One pro for the blood test is that a blood sample can be retested. Breath test reports can be reviewed, but there is no way to retest a breath sample.

The important thing to realize is that a breath or blood test result over the legal limit does not mean you are automatically guilty.  Both tests involve machines and humans, which can and very often do commit errors.  Test results need to be checked to insure that the proper procedures were followed and that the machines were calibrated, maintained and in proper working order before you should ever consider pleading guilty to a DUI.  Keep this in mind… in the state of California, only about 60-65% of all the DUI arrests result in a DUI conviction.

David Jones

David E. Jones is a Central Valley area DUI and criminal defense attorney who represents those accused of DUI and other crimes in both state and federal court. Mr. Jones has practiced criminal law throughout Fresno, Madera, Kings and Tulare counties since 1996. Mr. Jones was a Deputy District Attorney for Fresno County 12 years and has been an instructor for the Police Academy for over 10 years. He is an experienced and respected trial attorney.

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