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Q: Can this forced blood DUI test be beat?
My boyfriend from Huntington Beach was pulled over yesterday, St. Patrick's Day, for “driving too slow” at the light or at a turn. He refused a breathalyzer because he felt this was harassment. The police held him down at the station and took a blood sample, is this legal in CA? I know under probable cause they can take blood but is this enough reason for probably cause? Is there a way we can view how the sample was processed/handled? Would the time he left the bar to the time he was processed through the station and tested be taken into account? He usually balances his drink with a tall glass of water. I don’t believe he was over the limit when he left the bar. I’ve been followed out of the bar by police claiming I was “swerving” when I don’t drink alcohol, I’m usually DD. I feel that’s what happened last night because of the holiday. He was driving fine.
A: Yes, this is legal, but the police needed to get a warrant first. Did they? Your scenario presents possible grounds to file a motion to suppress evidence under Penal Code section 1538.5. There are likely issues related to consent and accepted medical practices. A good DUI attorney will make the prosecutor (and jury) take into account the driving pattern, time between driving and blood test, and how the sample is processed/ handled. The right attorney will understand police procedures, gas chromatography, fermentation science, and the science of alcohol absorption and elimination...
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