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Should I Take the Test, and If So, Which One?

September 28th, 2009

California drivers faced with a request form a police officer to summit to an alcohol chemical test must submit to a test, or be faced with the almost always certainty of a mandatory one year license suspension.   While there are various defenses that may be available for a refusal to summit to the mandatory testing requirement, this writer always recommends taking the test, thereby avoiding the potential for long term license suspension.

What test?

There are usually two tests available.  The standard breath test consists of a suspect blowing into a testing device.  Alternatively, one may submit to a blood test which consists of a simple blood draw.

Hands down, this writer recommends the breath test.  Breath testing requires conversion of a breath sample to derive a blood alcohol percentage.  The conversion factor is known as a partition ratio, and issues surrounding such ratios give rise to successful attacks on the reliability of breath test results.  Partition ratios vary widely in the general population and within individuals.  Moreover, patrition ratios in the general population are higher than the standard used in breath test machines, giving suspects taking such tests a potential benefit.

There are other reasons breath test machines lend themselves to an attack on the reliability of their results.  Machines often do not function properly.  Breath testing machines have a margin of error of 0.02%.  Further, breath test results in some machines are truncated.  The third decimal in the result is not included.  Thus, a test result of .099% will read out .09%, giving a suspect an added benefit.  In some situations a suspect may be able to avoid providing enough deep breath to register all of the alcohol present in his system.  Finally, the breath test machine scale in some machines is set .003% below the start line giving the suspect a further added benefit.

Should you or a loved one have the misfortune of a DUI arrest and/or be faced with other issues concerning your driving privilege contact San Jose DUI Lawyer Bernard P. Bray.

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