When you have been pulled over on suspicion of driving under the influence of alcohol, the officer must have reasonable suspicion before he requests that you complete any field sobriety tests or blood alcohol tests. This reasonable suspicion can arise from admissions of the driver. For example, if the officer asks the driver if he or she has been drinking, and the driver responds in the positive. If the driver has not made any admissions, the officer may still obtain reasonable cause by observations. For example, if the driver has red watery eyes, is slurring or smells like alcohol.
The officer, after having obtained reasonable suspicion may ask you to complete some field sobriety tests. Upon completing the field sobriety tests, if the officer feels that further tests are warranted, he will ask that you submit to a breathalyzer, or ask that you take a blood test so that an accurate measurement of your blood alcohol can be taken.
The test that is administered at the arrest location is not mandatory. This is referred to as the preliminary alcohol test. However, the one administered at the station is. If you refuse to take this second test, and are found guilty of driving under the influence, you could potentially face an increased sentence due to your refusal.
It is important to know that refusing is your right. You cannot be forced to submit to either a blood or breath test. If you refuse a blood test, the officers have no right to take your blood anyways. In fact, an officer may not take a blood sample from you to determine blood alcohol content, without a warrant, if you have not consented.
Supreme Court cases since the mid 1960’s have considered this question over the years and have ruled that without a warrant, an officer cannot obtain a blood sample.
Let’s consider an example. Danny is driving home and is stopped on suspicion of driving under the influence of alcohol. The officer stops him for running a red light. Upon approaching his vehicle, the officer smells a strong odor of alcohol and asks Danny if he has been drinking, to which Danny replies yes. The officer asks Danny to step out and complete some field sobriety tests. Danny is unable to successfully complete any of them so the officer takes him into custody. At the station the officer asks that Danny take a blood or breath test. Danny refuses to take the breath test so officer takes him to a nearby hospital and has his blood drawn.
Danny can argue that what the officer did was in violation of his Fourth Amendment rights, and the blood sample that was unconstitutionally derives should be suppressed evidence. Without the blood sample, the Prosecutor’s have a weak case. If your blood was taken without your consent during a DUI stop, consult with a Los Angeles DUI lawyer as soon as possible!