The Right to Retain a Blood or Urine Sample in a DUI Case

In Kern County, a person who selects a breath test must be informed, before or after the test, that the equipment used does not retain a sample, and that no breath sample will be available for analysis after the test. Veh C§23614(a); In fact the California Supreme Court has held that fundamental fairness does not require advisement before, rather than after, person submits to breath test. The accused DUI driver must then be advised that he or she may provide a blood or urine sample to be retained, at no cost, for subsequent testing. Veh C §23614(b). The person must also be informed that the blood or urine sample may be tested by either party in a criminal prosecution, and that the failure to perform a test places no duty on the opposing party to perform it and does not affect the admissibility of other evidence regarding the arrested person’s blood-alcohol content. Veh C §23614(c). The failure to give any of these advisements does not affect the admissibility of evidence of the arrested person’s blood-alcohol content.  The primary rationale behind this requirement is the idea that a breath test does not retain a sample that can be later tested by a defendant in a criminal case.

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