Usually, yes. If you are lawfully arrested for driving under the influence of alcohol, California law gives you the choice between a breath test and a blood test, and the officer must tell you that you have that choice. Whether you end up with the test you picked depends on whether you can complete it, whether it is available, and a few specific exceptions.
Your choice, and its first limit
Under California’s implied consent law, a person lawfully arrested for driving under the influence of alcohol “has the choice of whether the test shall be of his or her blood or breath,” and the officer “shall advise the person that he or she has that choice” (Vehicle Code section 23612(a)(2)(A)). The same subdivision sets the first limit: if you cannot complete the test you picked, or say you cannot, you must take the other one.
A drug, or combined alcohol-and-drug, arrest works a little differently. You still have the choice of blood or breath, and the officer must still tell you so (23612(a)(2)(B)). But if you choose breath and the officer has reasonable cause to believe you were driving under the influence of a drug, or of alcohol and a drug, and that a blood test will show it, the officer can require a blood test as well. The officer must write the facts behind those beliefs into the report and tell you the additional test is required. If you cannot complete the blood test, you must take a urine test instead (23612(a)(2)(C)).
If a test is not available
Availability, not just preference, can decide which test you take. If a blood or breath test is not available, you must take the remaining one; if both are unavailable, you are treated as having consented to a urine test and must take it (Vehicle Code section 23612(d)(2)). Testing for drugs runs to blood, and it falls back to urine when a blood test is unavailable (23612(a)(1)(B)). If you are first taken to a medical facility for treatment and a particular test or sample is not feasible there, your choice is limited to the tests available at that facility, which can include a urine test, and the officer must tell you which ones those are (23612(a)(3)).
Two medical exceptions change which test you take rather than whether you get a choice. A person with hemophilia, or a person with a heart condition who uses an anticoagulant under a physician’s direction, is exempt from the blood test and must take a urine test instead (23612(b) and (c)).
What the officer must tell you
You must be told that failing to submit to or complete a required breath or urine test will result in a fine and mandatory jail time if you are convicted of DUI. The same advisement must say that failing to submit to or complete a required breath, blood, or urine test will result in an administrative suspension of your driving privilege for one year, or a revocation for two or three years if you have certain earlier DUI-related convictions or license suspensions or revocations (23612(a)(1)(D)). For how refusal penalties play out, see DUI refusal cases.
The officer must also tell you that you have no right to have a lawyer present before saying whether you will take a test, before choosing which test, or while it is given, and that if you refuse, the refusal can later be used as evidence against you (23612(a)(4)).
The choice applies to the chemical test after arrest. It is separate from the preliminary alcohol screening test an officer may request during the stop. That roadside breath test is treated as a field sobriety test, and taking it does not satisfy the post-arrest testing requirement, which the officer must tell you (23612(h) and (i)). See breathalyzer test for more on the two kinds of breath test.
Why the details can matter
Which test was offered, whether you were told about the choice, and why a particular test was or was not available are facts worth checking in the arrest report, separate from whether the result itself was accurate. If an additional blood test was required after you chose breath, the report should state the officer’s reasons (23612(a)(2)(C)). Reliability problems with a completed blood test, such as collection, storage, or lab issues, are covered in DUI blood test defense, and timing issues with a rising blood alcohol level are covered in rising blood alcohol defense.
If you are unsure whether you were given the choice the law requires, or what to make of the test you were given, the Law Offices of David S. Chesley can go over your arrest report and test paperwork with you: (800) 755-5174.