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So oftentimes clients will ask me if I’m given a choice between breath or blood testing when I’m being arrested or investigated for DUI what test should I give? And the answer is you’re generally not given a choice. The police will tell you what they feel is appropriate under the circumstance. Because for example, I have a lot of clients who will tell me that if you blood tested me, I had marijuana in my system but I told them that I wanted to take a breath test. And I said yeah, but the problem with that is that when they pulled you over, they didn’t smell a strong odor of alcohol on your breath what they smelled was an odor of marijuana emanating from the vehicle. So at that point, the police realize that a breath test is not going to capture that and they are specifically going to ask you for blood. And if you say well, I’m not giving blood but I’ll give you a breath test they’re going to put you down as a refusal.
So the police are allowed to take the circumstances into account and decide what they think is the most appropriate testing based on their observations of you. And to be honest, most police these days should take the position of doing blood testing to help their case because blood’s going to capture everything. Blood’s going to capture both alcohol and it’s going to capture potential narcotics use. And all that will happen is make their case stronger that perhaps you had a combination of drugs and alcohol in your system and maybe your alcohol level was below the legal limit but the combination of it allows a chemist in court to testify that you were under the influence of a combination of narcotics, which made it incapable for you to safely operate a motor vehicle.
Philadelphia, PA criminal defense attorney Brian Fishman explains why you typically don’t have a choice between taking a blood vs. a breath test.