If CA Police Officers Suspected of DUI Can Delay Their BAC Test, Why Can’t I?

For the second time in almost a year, a California police officer was arrested under suspicion of driving while under the influence of alcohol, yet there was a substantial delay between the time in which the officer was suspected of DUI and the time in which their Blood Alcohol Content (BAC) was tested. The most recent occurrence involved a CHP officer, 27-year-old Amanda Estrada, who was pulled over in Rancho Bernardo, but the arresting officer did not test her BAC level until she was escorted to the San Diego CHP office.

Once at the San Diego office, Estrada’s BAC level was tested and shown to be below the legal limit of .08 percent.

One year ago, another California police officer, 34-year-old Jeffrey Blackford, was arrested after crashing his city-owned undercover vehicle in Southern California. After the crash, records show that Blackford contacted two of his friends, both off-duty police officers, to come to the scene. One of those officers then called two on-duty officers.

Three hours passed before Blackford was given a BAC test, but he still registered over the legal limit of .08% blood alcohol content.

With California law allowing very little wiggle room for those under suspicion of driving while under the influence, suspicions that police officers are given special treatment to help them avoid DUI convictions have become legitimate concerns.

Can CA Drivers Refuse BAC Tests?

The short answer is yes…but there are serious consequences. California has a law commonly referred to as the “implied consent law”. Basically, if a California police officer has legitimate reason to believe that you are under the influence of drugs or alcohol while driving, then you have already given your consent to allow them to test you.

If you refuse to take the BAC test, whether it is by breath, blood, or urine, you will be ordered to pay substantial fines, lose your license to operate a motor vehicle, and could later be sent to jail if convicted. There are exemptions for those with certain medical conditions, but in most cases, refusing a BAC test will result in severe consequences.

Penalties for refusing to take a BAC test include a one-year suspension of your driver’s license and a $125 fine. If it is not your first offense, the penalties will be increased. It is rarely in one’s best interest to refuse a BAC test, as prosecutors will likely portray your refusal to be an acknowledgement of guilt. “If he was not driving drunk, why would he refuse the BAC test?”.

Did The Police Conduct an Illegal DUI Investigation?

Whether or not the police conducted an illegal DUI investigation is currently being investigated. For Officer Amanda Estrada, common procedure would have been for her arresting officer to check her breath using a BAC breathalyzer at the scene. Officers are not required to do so, but the gathering of evidence at the scene of any alleged crime is the best way to secure a conviction against the suspected offender later. By failing to do any kind of test other than field sobriety tests (touch your nose, walk a line), they created a situation in which Officer Estrada’s BAC level was below the legal limit when she was tested. Although it is debatable, there is a significant chance that Estrada’s BAC level at the scene was at or above the legal limit, but that the three hours of downtime before she was tested helped her sober up. Without a BAC level of 0.08% or more, there is little evidence to convict her of DUI.

In Officer Blackford’s case, concerns that he was given unfair treatment are even more legitimate, as several off-duty officers became involved in a DUI investigation before on-duty officers, creating the potential for a cover-up. Officer Blackford was able to sober up for several hours after his collision before he was given a BAC test. Why would Officer Blackford call off-duty officers to respond to his collision rather than on-duty officers? Was he too drunk or was it a conscious decision?

Officer Blackford has since pleaded guilty to a misdemeanor DUI charge and has been ordered to serve five years of probation, 25 days of public service, and attend DUI classes.

Having prosecuted and defended countless DUI cases over the last several years, I can say that I have never seen DUI investigations conducted in this way. Although the police do not seem to have broken any laws, there is no doubt that these officers were treated differently than the majority of those who are arrested for driving while under the influence in California.

California DUI Defense

Facing charges for driving while under the influence in California? Call our top rated DUI defense law firm in Orange County to obtain a free case evaluation from a skilled local lawyer. Call (888) 250-2865 to obtain a free case evaluation and find out what options you have available to help secure your rights.

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Sources:

http://www.nbcsandiego.com/news/local/SDPD-Officer-Allowed-Delayed-BAC-Test-after-DUI-Stop-234182261.html

http://www.10news.com/news/gang-detective-to-be-sentenced-for-dui-042213