Which Testing Method Used by the Police Is Most Often Used as Evidence against the Driver in a DUI Arrest?
Breath Tests Are Most Often Used because They Are the Easiest Test to Administer
Paul Geller: Most of the time police officers have breath tests available and that’s because they are the easiest to administer. A typical DUI will originate from a traffic violation or a checkpoint. The police officer then will say that they noticed physical observations that indicated alcohol consumption when they were still behind the wheel of the vehicle after being pulled over. Quite frankly when challenged in court, I’m always able to show that they improperly checked the eyes of the driver because that test is never done properly when the client is sitting still in the driver’s seat.
They will then take them out, lead them to the sidewalk, and to do field sobriety tests which as I already previously explained, well over half the time, are not done properly. Sometimes they will then have, what we call, the preliminary alcohol screening device.
Because of Inherent Problems with the Preliminary Breath Test Device, the Results Are Inadmissible
And again, I am certified on that device and there are many problems with that device in and of itself. This is why it is not the breath test used to show the person’s blood alcohol level in court. It is, as explicitly stated in the field book code, “simply a field sobriety test to check for the presence of alcohol”.
You Have the Legal Option of Choosing Either a Breath or Blood Test
Once the officer then makes the determination that the person is being arrested they will tell the person that, and they are obligated to tell the person that they have the choice of a breath or blood test.
There are some DUI officers who are very outspoken and all they do are DUI investigations. I have seen the recordings and I have challenged these particular officers and beat them in court when they do not offer the choice of breath or blood and have just simply told the arrestee, “I’m going to take you now for a blood test.”
The Police May Encourage a Blood Test because the Results Are More Accurate than a Breath Test
In their demeanor and in the way they handle the relationship with the person they’re arresting, they’re quite successful in simply taking the person down to get a blood test without any objection. Most of the time people don’t realize they have the choice of breath or blood.
The blood test tends to be more accurate, so I’ve seen that pushed on people. The fact remains they have an option of breath or blood and by pushing them into blood, as I mentioned earlier, unfortunately the court’s remedy for that is not to simply throw out the results.
New Legislation in California Requires the Police to Obtain a Warrant If You Decline the Blood Test
A new law in California does require that if you refuse a chemical test, or you refuse to give blood I should say, they do have to get a search warrant in order to get your blood, but you still have the choice of a breath test. The breath test is probably still the most often used chemical test measuring device.
Subsequent to being arrested, the driver will be taken downtown to the station where they will be tested on a different type of machine than the one I was describing earlier from the field. This still tends to be the most used type of device, even at checkpoints because it’s a more portable circumstance than taking someone’s blood, despite the fact that blood is generally more accurate.
Interviewer: What are the most common needs a person has once they meet with you? What do they ask you? What are they afraid of?
What Will Happen to My Career? Is the Attorney Quoting the Least Expensive Fee the Best Option to Defend a DUI?
Paul Geller: I think that most people are afraid of number 1—their professional career and the stigma of having a DUI on their record. Number 2—there are so many variations of quotes from DUI lawyers in terms of fees that most people think you can have someone represent you for a very small amount of money and receive adequate representation.
When I say small, what I’m referring to, all though it’s not a small amount of money, it is in terms of quality representation. Is someone that charges $500 or $1000 for a DUI a reputable attorney?
Does the Adage “You Get What You Pay for” Applicable to DUI Defense?
Interviewer: I’ve seen those advertisements.
Paul Geller: Unfortunately that’s just not the case. The attorneys that know what they’re doing on a standard, routine DUI will charge considerably more than that. It used to bother me as a DA and it bothers me still as a defense attorney that there are people out there who are charging much, much smaller fees and then they don’t offer proper representation. They simply sell their clients out. They go to court, they tell their clients that this is a great offer and they move on.
I have a very good friend who happens to run a practice where he charges considerably less and he tells the people that he’s going to make 2 appearances: the first to pick up the police report and the second to tell them either you should take this deal or you’re going to have to pay me more money.
When in essence—he really hasn’t done much defense of your case at that point. There is quite a bit of discovery and investigation that needs to be due even on something as simple as a DUI and that costs money. People need to understand that if you can afford to do it you’re going to spend considerably more.
If you can’t afford it then go with a public defender but that’s just the nature of what it is. You don’t want to both get inadequate representation and you’re out $500, $1000, or $1500 for poor representation. Save your money and only do what you can afford to.
So I do try to explain that to people when they come in because they get quotes that are completely unrealistic. But I also try to work with clients financially as best as I possibly can. I explain to them that if they’re looking for quality then they’re going to have to pay for it.
When Considering an Attorney to retain, It Is Important to Remember the Impact of Even of First-Offense DUI Conviction
Interviewer: Because of course a conviction is something that’s going to affect them for the rest of their lives.
Paul Geller: Without question this is something that you’re not just going to be dealing with now. I do handle clients that unfortunately come back 7, 8 years from a DUI conviction where they really didn’t have anyone helping them and now it’s affecting their job status and I have to try and undo someone else’s mistake.