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Suppressing Chemical Test Results

You were arrested on suspicion of driving under the influence and told you were required to submit to a chemical test of your breath or blood. You may have also been told you had no right to speak with an attorney before deciding whether to submit to one or the other.
There may be legal grounds under the Fourth and 14th Amendments to the United States Constitution to suppress the test results from evidence. The seminal case of Missouri v. McNeely has spawned several challenges to the use of this evidence.
Absent “lawful consent” or “exigent circumstances,” the police must get a warrant before having someone stick a needle in you to draw blood. The same may apply to breath test samples though the law is a little less certain in this area (courts are presently grappling with this issue). What is “lawful consent?” Consent that is uninformed or coercive is not lawful consent, so if the police failed to inform you that there is an option to refuse, or put undue pressure on you to submit, that may well be a basis to have the evidence thrown out of court. What constitutes “exigent circumstances” depends on the “totality of the circumstances,” but the mere natural dissipation of alcohol is not enough to excuse the warrant requirement.
You should have an attorney review the police report in your case and discuss these issues with you before pleading guilty, and make sure the lawyer you talk to is knowledgeable about these issues.
I am a Board-Certified DUI defense attorney practicing in the Northern California Bay Area for the past 30 years. Feel free to contact me about your case.

About Paul Burglin

Paul Burglin
Paul Burglin practices DUI defense in the San Francisco Bay Area including the Napa/Sonoma wine country. He has been in practice for more than 30 years and was formerly a partner at one of the oldest Marin County law firms (Mitchell, Hedin, Breiner, Ehlenbach & Burglin). After graduating from U.C. Berkeley in 1980, Mr. Burglin received his law degree from Gonzaga University School of Law in Washington. He is Board Certified in DUI Defense and co-authors the two-volume treatise, "California Drunk Driving Law." He is on the Board of Regents with the National College of DUI Defense (www.NCDD.com) and is Editor-in-Chief of its case law update and newsletter. He is one of only a select few of DUI defense attorneys in the United States to have attended the University of Indiana’s Borkenstein Course on chemical testing and scientific protocols offered to prosecution experts, and he is a certified graduate of that program.

If you would like to contact the author, please visit: http://www.burglin.com


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