Legal Question in DUI Law in California

Is it legal for a policeman to not allow me to take a breath alyzer test when pulled over for a dui? I fell asleep at the wheel, and ran into a guard rail the other night in Riverside County. I asked the police to give me a breath alyzer on the spot because I knew I wasnt drunk. They took me back to the jail and took my blood. Is that legal?


Asked on 11/04/09, 4:51 pm

1 Answer from Attorneys
Bruce Kapsack Kapsack and Bair - DUI Attorneys, Board Certified in DUI Defense

It depends on if there was any injuries. If no one was injure, including yourself, then YOU have a right to choose a breath or blood test, but NOT at the side of the road. The side of the road breath test is generally NOT the official machine. That machine resides at the police station.

Under a case called Nelson v. City of Irvine, the courts have held that if YOU state a preferred test choice, i.e. breath over blood, then that choice is to be followed. Failure to do so MAY lead to the criminal case being thrown out and more significantly, as was the case for Mr. Nelson and several others, you can sue the police officer and possibly the city.

If you wish to discuss this further please feel free to call my office.

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Answered on 11/09/09, 6:16 pm


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