What happens if there is no breathalizer evidence nor blood test evidence?
Question: I was pulled over and arrested for a DUI in Reseda, CA last weekend. I did some sobriety tests that the officer asked me to do. He then asked me to do a breath test. The police office told me I wasn’t blowing hard enough therefore he arrested me and said he was going to do a blood test.
However, no blood test was done at the station. What happens if there is no breathalizer evidence nor blood test evidence? Can they still charge me with a DUI even though no alcohol reading?Arrested for a DUI in or near Van Nuys, CA, your
Answer: The quick answer, yes. A prosecutor will try to establish that you were driving under the influence based on the driving, any field sobriety tests that you did, and the officers subjective opinions of you based on your interactions with the officer (ie. odor of alcohol, red watery eyes, slurred speech, unsteady gait…etc).
I do have some questions that I would like to know to be better able to answer your questions. For example, they only offered you a breath test before they arrested you, and not after, correct?
Often times, the Blood alcohol content level as stated in a breath or blood test is the prosecutors best evidence against you. When that is missing, it can make it more difficult for the prosecutor to establish actual driving under the influence. Fighting a DUI case where there is no breath or blood test results has it advantages.
That being said, there is a risk involved though as a refusal to complete a breath or blood test can be used as an enhancement if convicted of the DUI. If you get convicted of a refusal at court, or lose the DMV hearing on a refusal (for a 1st offense DUI), you will lose your driver’s license for one year without the option of getting a restricted license during that time. Also, the prosecutor could be looking for some additional penalties on top of what they may normally be looking for when there is not a refusal enhancement.
I have come across situations where it was clear that the officer did not follow proper protocol and the refusal allegation was weak at best. In some other situations, the officer marked it as a refusal in his paperwork, but did not follow proper procedures and I was able to negate the refusal issue, which left a good case on the underlying DUI. In the likely event they are charging you with a refusal since you did not complete a breath test (even though you tried) or a blood test, there are defenses to this.
I recommend that you speak to a DUI Attorney as soon as possible. I would be happy to speak to you and offer free initial consultation.
DUI Lawyer; Criminal Defense attorney