Don’t I have a right to speak to a DUI lawyer before deciding whether to take the BAC breath or blood test?
No. Unfortunately, you don’t. Upon arrest for DUI, the officer gives you the choice of a BAC blood or breath test (unless he suspects you are under the influence of drugs, in which case he can require that you provide a blood sample). Under California DUI law, you do not have the right to consult a California DUI attorney before deciding which BAC test to take, or whether to take the blood or breath tests at all.
We think California DUI law should be different. We think you should be allowed to call a California DUI lawyer for advice before making such a critical decision that affects your legal interests. And we advocate that California DUI laws should be changed to allow for more consultation with lawyers during the DUI investigation process.
But at the end of the day, it’s not what we think that counts. It’s the California DUI laws that prevail.
If we were to be contacted by someone just pulled over for DUI, this is the advice we would generally give: Refuse to answer any questions about what, how much, when and where you drank. Refuse to take the roadside, handheld breath test (called the PAS).
Refuse to take any of the field sobriety tests, including the horizontal gaze nystagmus test (where you follow the stimulus with your eyes). If you do get arrested for DUI, then, at that point, you must submit to the blood or breath test. We usually recommend the blood test.