Saturday, March 23, 2013

Does California Allow A Urine Test For A DUI?

The answer to this question is both yes and no.  Let me explain, if you are arrested for a DUI in California you are given an option of taking either a blood or breath test if you are suspected of driving with a BAC of ,08 or more.   These are the state mandated choice of tests that satisfy a driver's requirements under the implied consent laws.  But is a urine test an option at all?  The answer is yes.  Once a person gives the state required breath test and a valid sample is obtained, the driver then has an option of giving a urine sample as a way to preserve the evidence for later testing.  You see. a breath sample cannot be saved for later analysis so California law under a case called Trombetta allows the accused to take a blood or urine, at their own expense, for future testing once the case gets into Court.

There is another way a person has a right to take a urine test.  If the arresting officer believes that the DUI suspect is under the influence of drugs as well as alcohol or if the only substance is drugs.  the choice of tests at that point is either blood or urine since a person's breath cannot give an accurate reading of the presence of drugs such as marijuana.  In this instance, the driver has the absolute right to submit to a urine test rather than a blood test unless, for some reason a urine test is unavailable.  Should a suspected DUI driver refuse to take either a blood or urine test when suspected of a DUID, under California DUI Laws, the driver will face the possible punishment of a suspension of up to 3 years by the California DMV.

In conclusion, a urine test is an option in certain circumstances within a California drunk driving context.  Specifically, when the driver takes a breath test and wants a sample of his or her urine to be saved for future toxicological analysis at his or her own expense.   Also, when the DUI suspect is believed to be under the influence of a drug which cannot be detected by a breath test.

Sunday, March 10, 2013

Can a Police Officer Stop Your Car Just For Leaving a Bar?

DUI arrests are fast becoming the number one type of criminal charge in the U.S. today according to many sources.  The police are often encouraged and empowered to stop as many motorists as they can in the hopes of catching a driver who is impaired by alcohol or drugs, or sometimes both.  In the zeal for getting DUI drivers off the road we sometimes forget that the Bill of Rights affords each one of us the protection from unreasonable searches and detentions by law enforcement, with this being said, is it reasonable or legal to stop a car just because the driver was observed leaving a bar or drinking establishment?  Some say it is OK, others believe that unless the officer sees some illegal action, that type of stop would be illegal.

According to Bruce Blythe, a Bakersfield Criminal Defense Attorney who handles many DUI cases, a stop by police simply based on the fact that the driver was seen walking out of a bar would be Constitutionally impermissible.  The touchstone of the Fourth Amendment, according to Blythe, is the premise that any "seizure" of a citizen by the government must be based on a reasonable suspicion of criminal activity.  This suspicion need not rise to the level of actual certainty, but must cause a reasonable person to conclude that criminal activity may be afoot.  In the scenario presented, Blythe argues that the officer would lack any objectively reasonable belief due to the fact that patronizing a bar is not illegal, nor is there any fact upon which the officer could point to that would lead him to a conclusion that the driver had been drinking and was impaired to the degree that he or she could no longer drive the vehicle safely.

In this type of a fact pattern, the absence of any articulated facts to support the belief that the driver was impaired or above the legal limit in California would certainly result in a finding that the contact and subsequent DUI arrest  violates the Constitution and thereby would be illegal under CA state law.