At the beginning of 2022, the law regarding DUI diversion changed. DUIs are no longer eligible for diversion in California. Please contact our office with any questions. Email us at OR Call us at: (415) 886-6333

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Law Offices of Aaron Bortel

Law enforcement will request the standardized field sobriety test when a driver is under the influence of something other than alcohol. It’s part of their testing procedure. Typically, the last test that they do on the standardized field sobriety test is the preliminary alcohol screening in which the driver has to blow into a breathalyzer device. A lot of times, when an officer sees someone driving erratically, acting a little off, or if they may not be able to smell the odor of an alcoholic beverage on someone for a number of different reasons, they will have them blow into a breath machine after doing the other standardized tests. If they get a very low reading or no alcohol in the system, but they still think that the person is impaired, they’ll continue with the testing. If they don’t have an admission or find marijuana around the car or on the person, but they think that there may be some type of drug involved, they can and often move forward with their testing. After that preliminary alcohol screening test, that’s when they will have a drug recognition expert continue the investigation.

The investigation is usually done back at the station. The reason that they do it back at the station is that they want the driver to have a calmer surrounding compared to the side of the highway or road. Also, they do a pupil test, which requires a dark room. Sometimes I get marijuana cases where there is no drug recognition expert available, and when that happens, it makes fighting the marijuana DUI case easier. It gives us a much better chance of winning the case or getting a better outcome because they do not have all of the additional evidence. In Marin County, for example, with all the different departments and sheriff’s office, there should always be at least one DRE available, especially on the night shift. But, I’m still getting cases in Marin County where a DRE is not available. No additional investigation is done, but it gives us a better chance of winning the case.

Can I Refuse A Chemical Or Blood Test In A DUI Marijuana Case In California?

In California, you can refuse a chemical or blood test in a DUI marijuana case. Under California law, if you refuse a chemical test after you’re arrested for DUI, the officers can get a warrant from a judge to make you take the test. If you don’t, you have to take a blood test, and if you still don’t, they can hold your arms and body down to take it forcibly. Some counties are more likely than others to do that. Some cities and counties don’t do it as often. But, a lot of them do that in the San Francisco Bay Area.

When you get your driver’s license, you sign a form under penalty of perjury that you impliedly consent to submitting a chemical test if you are ever arrested for a DUI. Implied consent applies to a breath or blood test for alcohol. If it’s a drug case that involves marijuana or another drug, then you would have to take a blood test. So, when someone gets pulled over, they go through some field testing, preliminary questions, and perhaps a preliminary breath test. The officer will then make a determination, and they usually put you under arrest for DUI. They will proceed by reading an admonishment, especially when someone refuses a chemical test, which says that you need to choose a test and that it is implied consent. If the driver still refuses to take the test at that moment, the consequence is the suspension of their driver’s license for a year or more. The suspension of your driver’s license for a minimum of one year means that there is no restricted driving, no ignition interlock driving, and no driving whatsoever for a year. And that’s if it’s just a first DUI offense. If you have a prior DUI within the last 10 years or prior refusals, the penalty can be much worse. If you can’t afford to lose your license for a year, if you drive all the time, or need that license for whatever reason, it is best to avoid getting your license suspended.

For more information on DUI cases, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 886-6333 today.

Aaron Bortel

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