Understanding Your Right To Choose Breath Or Blood

In Kern County, as is the case throughout California, a person arrested for DUI has the right to take either a breath test or a blood test upon request by a peace officer.  There are limitations to this right and it is important to understand the nuances of the law.

First, if there is only one type of test available such as is the case when there is a breakdown of equipment, then only the remaining test is the option.  For example, if the breath machine is malfunctioning or the subject cannot produce sufficient breath to capture a sample then blood is the only option.

When a person is a hemophiliac and cannot submit to a blood test then breath is the only option.  Interestingly, a person does have a right to a urine test at their own expense if they choose breath but want a sample to retest later.  In these cases, the officer must advise the subject that the cost of the test will be billed to them.  Failure to advise a suspect of this right can be used by an attorney later in court.

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