How a Lack of ‘Free and Voluntary’ Consent Can Help You Get Your Blood Test Results Thrown Out of Your California DUI Case

bloodIn your DUI case sometimes, the seemingly smallest details can make the biggest differences. A police officer’s failure to provide you with proper information about your options prior to taking a blood alcohol test can possibly give you the opportunity to have that test’s results excluded from your trial. To make sure that you take advantage of all of the protections the law provides you as a criminal defendant, make sure that you are working with an experienced San Francisco DUI attorney.

A recent case from Santa Clara County offers an example of how these legal protections can work for you. The facts of the case started out as many suspicion-of-drunk-driving encounters with law enforcement probably do. A local police office initiated a traffic stop at around 10 p.m. after spotting a vehicle turn the wrong way down a one-way street in downtown Campbell. During his interaction with the driver, the officer smelled what he thought was alcohol on the driver’s breath, and he identified what he thought to be slurred speech and bloodshot, watery eyes. The driver, Rebecca, said that she had consumed one or two margaritas at a nearby restaurant.

The officer administered three field sobriety tests to Rebecca. It is important to note that, under California law, you are not required to submit to field sobriety tests; you may legally refuse to do them. Refusing to submit to a field sobriety test may motivate the officer who pulled you over to arrest you, but then, so will submitting to them and failing them, which is what Rebecca did.

The officer subsequently asked Rebecca to submit to a preliminary alcohol screening, but she refused that test. The officer then arrested Rebecca and took her into custody. While in custody, the officer required her to submit to a blood alcohol test. The officer gave her the choice of a blood test or a breath test but told her that she was required to submit one or other. Rebecca chose the blood test.

At her trial for misdemeanor DUI, Rebecca asked the judge to suppress the results of the blood test. She argued that the blood test was a violation of her Fourth Amendment rights when the police took her blood without a search warrant. The trial court rejected the request to throw out the evidence, but the Court of Appeal ruled for Rebecca.

What was it that allowed the driver to succeed and get her blood test results thrown out? It was her correct identification of the fact that the officer did not follow the proper procedure in advance of her blood test. The Fourth Amendment requires “free and voluntary” consent. When the officer told Rebecca that she was “required” to undergo either a breath test or a blood test, and he did not tell her that she could refuse and did not provide her with any of the admonishments stating the consequences of refusing both a blood test and a breath test, his information was sufficiently incomplete that it made Rebecca’s consent something less than free and voluntary. That meant that the blood draw was a Fourth Amendment violation, and the driver was entitled to have the test results thrown out.

To make sure that you fully protect your rights and ensure that all of your bases are covered, consult the skilled San Francisco DUI defense lawyers at Uthman Law Office. Attorney David Uthman has over 20 years of experience as a litigation attorney and almost a decade of experience as a police officer. Put the power of our team’s experience to work for you. Call us today at (415) 556-9200 to schedule your FREE initial consultation to get the help you need.

More blog posts:

New Traffic School for Bicyclists Opens in California, San Francisco Criminal Lawyer Blog, Feb. 23, 2018

The Risks You Take When You Handle Your DMV Driver’s License Suspension Case On Your Own Without a San Francisco Attorney, San Francisco Criminal Lawyer Blog, Feb. 16, 2018

Photo Credit: frolicsomepl, [CC0 License], via Pixabay

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