OC Crime Lab Audit Reveals Over-Reporting Blood Alcohol Levels

November 8th, 2013

Orange County Crime Lab Audit Reveals Over-Reporting Blood Alcohol Levels

On November 1, 2013, many of our clients received a letter from the Orange County District Attorney’s Office indicating that the Orange County Crime Laboratory discovered that an incorrect calibrator value was used on one of the two devices used to calculate the average blood alcohol levels on a case.  According to the letter, this affects forensic alcohol analyses conducted at the Orange County Crime Laboratory between May 29, 2013-to-October 9, 2013.  According to the letter, as a consequence of this discovery, a number of Blood Alcohol Content (BAC) Reports, or Forensic Volatile Examination Reports (FVER), generated by the Orange County Crime Laboratory during this period of time erroneously indicated that the blood alcohol level was 0.01% HIGHER than the correct or true value.  For example, a report indicating that a person had a blood alcohol level of o.08% may correct to a 0.07%. Of course the District Attorney’s Office believes the incorrect calibrator value did not affect the accuracy of the reported BAC Reports in most cases.

According to the letter, the error was discovered during an audit and all blood alcohol samples analyzed by the Orange County Crime Laboratory between May 29, 2013 and October 9, 2013 will be reanalyzed and the results of the reanalysis will be revealed on or about December 1, 2013. Obviously, until the reanalysis has been conducted, it is difficult to gauge the full impact of this error.  Moreover, it certainly calls into question the accuracy of any and all analyses performed during the aforementioned period.  The questions that still need to be answered about the audit was whether it was an internal audit or an external audit and how the error was discovered by the auditors.  

The other issue that seems to have gone unnoticed is that not only 0.08% cases are affected by the error.  There are blood alcohol levels above 0.08% that are also affected.  For instance, pursuant to Vehicle Code Section 23538(b)(2) and Vehicle Code Section 23556(b)(3) a person with a first offense DUI, but with a blood alcohol level of 0.20% or greater is required to participate in an alcohol program of at least nine months; however, if that person were below 0.20%, that person would only be required to do either a three month or a six month DUI alcohol program.  Additionally, in Orange County, pursuant to Vehicle Code Section, a person with a blood alcohol level of 0.15% is typically required to do a six month alcohol program; thus, this is the other decision point affected by the error.

The Orange County DUI Lawyers of the Law Office of Barry T. Simons have begun taking an inventory of their Orange County DUI cases during this time period of time, some of which are still open cases.  Thereafter, motion to compel discovery relating to the audit and its findings will be filed with the Orange County Courts and the Orange County District Attorney’s Office so we can uncover the full impact of this error.

If you were charged with driving under the influence between May 29, 2013 and October 9, 2013, contact an Orange County DUI Defense Lawyer from the Law Office of Barry T. Simons today for a free DUI Consultation and DUI Case Evaluation: 949-497-1729.

Orange County DUI Discovery & Orange County DUI Evidence

September 16th, 2013

The Orange County DUI Lawyers of the Law Office of Barry T. Simons is committed to defending those charged with Driving Under the Influence in Orange County, California.  Through the process of the DUI representation, the DUI Lawyers of the Law Office of Barry T. Simons thoroughly review all of the discovery, or evidence, that the prosecution intends to use against you. Much of this evidence is the same evidence that the California Department of Motor Vehicles will use against you to suspend and/or revoke your driving privileges.

For more information on Orange County DUI Discovery applicable to each of the Orange County Cities listed below, click the link below:

Aliso Viejo
Anaheim 
Brea
Buena Park
Costa Mesa
Coto de Caza
Cypress
Dana Point
Fountain Valley
Fullerton
Garden Grove
Huntington Beach
Irvine
Laguna Beach
Laguna Hills
Laguna Niguel
Lake Forest
Mission Viejo
Newport Beach
Orange
Rancho Santa Margarita
San Clemente
San Juan Capistrano
Santa Ana
Seal Beach
Stanton
Tustin/Tustin Ranch
Westminster

If you were arrested for Driving Under the Influence in Orange County, contact the DUI Lawyers of the Law Office of Barry T. Simons today for a free, no-cost, DUI Consultation and Case Evaluation at: 949-497-1729.

What To Say To Police After Being Stopped For DUI

July 4th, 2013

Almost every American has heard of the Miranda warnings. Most understand Miranda to mean that you have an absolute right to remain silent when questioned by the police. This had been an absolute truism until the United States Supreme Court issued it’s ruling in Salinas v. Texas on 6/18/13. That case holds that a prosecutor can use a suspect’s silence as an admission of the facts implied by the unanswered question where the suspect was not in actual custody and did not affirmatively assert his right to remain silent. So beware, if you are stopped for a DUI investigation, the cops are trained to ask you lots of questions before they decide to arrest you and Mirandize you. Some of these questions may seem very simply and non-incriminating, like when did you last sleep or what have you eaten today. Be aware that all these questions are designed to help the prosector convict you. So, under the new Salinas decision if you start to talk to the cops and then want to stop, you can’t simply refuse to answer the questions as they get tougher, you must invoke your 5th Amendment rights or risk having your silence used against you. The best thing to do is to cooperate with the officer and provide identifying documents and then tell them that you are invoking your right to remain silent. Remember that you are not required to submit to police field sobriety tests nor are you required to submit to any pre-arrest breath test. You must however submit to either a breath test or a blood test under California Implied Consent if you are arrested for suspicion of DUI.

DUI Checkpoints and DUI Task Force for 4th of July Weekend 2013

July 3rd, 2013

Orange County residents who are celebrating the 4th of July or simply enjoying the long weekend should be aware that there will be a “Drive Sober or Get Pulled Over enforement crackdown in Orange County for the 2013 July 4th weekend. The CHP will be operating under their “Maximum Enforcement” which means that all available officers will be on freeways and county roads trying to catch and arrest DUI drivers in Orange County. Checkpoint will also be set up throughout Orange County in an effort to apprehend DUI drivers. Although DUI/Driver’s License checkpoints have been generally upheld against constitutional attach, they must still comply with rigid operational guidelines to be legal. If you encounter a DUI Checkpoint, there should be a warning sign advising you that there is a checkpoint ahead and you should be given the opportunity to lawfully avoid the checkpoint. If you do in fact avoid the checkpoint, you may not be detained by police for the simply act of avoiding the checkpoint. For those of you who will be celebrating with your children, remember that there are very serious consequences for driving DUI with children in the car.

U.S. Supreme Court Limits Use of Warrantless Blood Draws In DUI Cases

April 21st, 2013

As predicted in our prior blogs, the United States Supreme Court refused to follow the government’s position that exigent circumstances exits to justify the warrantless extraction of blood from all DUI suspects based solely of the fact that blood alcohol evidence dissipates with time. The decision in Missouri v. McNeely affirms the long standing but misunderstood rule of Schmerber v. California that true exigency is required to bypass the warrant requirement. The court’s reliance on Schmerber is critical because it reaffirms a long standing rule of law and therefore will be controling in pending cases notweithstanding the prosecution’s predictiable position that this is new and cops should not be punished for their “good faith” reliance on prior bad law in California. This case should have a big impact on DUI cases in Orange County where police agencies in Laguna Beach, Newport Beach, Irvine, Costa Mesa and Huntington Beach routinely force blood without a warrant when DUI arrestees refuse to consent to a blood test. This is a common practice where a subject has trouble giving a breath test or submits to a breath test and maintains that they do not have to provide a post arrest sample. This case is great news to those charged with a DUI in Orange County when blood is taken without a warrant or consent.

Missouri v McNeely May Change California’s Warrantless Forced Blood Draw Rule

March 29th, 2013

Under current California law a police officer does not have to obtain a search warrant to obtain a driver’s blood in a DUI case if the driver does not consent to a chemical test of his breath or blood in a DUI alcohol case or blood in a case involving DUI under the influence of drugs or the combined influence of drugs and alcohol. California law allows forcible blood draws without a warrant in all cases where a subjected has been lawfully arrested for DUI and either refuses to take a test or fails to complete a test. The California Supreme Court has reasoned that the dissipation of alcohol over time creates an exception to the requirement of a search warrant which justifies the non consensual and even forceful taking of blood. When this happens, the driver is then subjected to lengthy suspensions of their drivers license as well as mandatory jail time if convicted. This rule may be altered by the United States Supreme Court which has heard arguments In Missouri v McNeely in January and should release it’s opinion shortly. Based on the questions and comments of the Justices during oral argument, the California per se rule seems to be at risk because search warrants have become much easier to obtain telephonically or electronically.

St. Patrick’s Day Orange County DUI Checkpoints

March 17th, 2013

Well, it’s that time of year again: St. Patrick’s Day, and this time it occurs on a weekend, which means Orange County Law Enforcement agencies were setting up DUI checkpoints and Roving DUI Patrols throughout Orange County, California looking for DUI Drivers. If you were stopped at a DUI checkpoint or by an officer assigned to the Roving DUI Patrols, look no further than the DUI Lawyers of the Law Office of Barry T. Simons to represent you in your Orange County DUI case. The DUI Attorneys of the Law Office of Barry T. Simons are the Recognized Leaders in DUI Defense in Orange County and throughout Southern California.

Local news reports have indicated that DUI Checkpoints have been set-up throughout Orange County over this St. Patrick’s Day weekend. From San Clemente to Anaheim, from Newport Beach, Laguna Beach and Irvine to Tustin, Fullerton and Seal Beach, Orange County law enforcement agencies were working hard to arrest anyone participating in the St. Patrick’s Day festivities. Do not let sub-par representation lead to a DUI conviction that could have been avoided had you or a loved one hired the DUI Lawyers of the Law Office of Barry T. Simons to defend against the Orange County DUI charges.

If you or a loved one was caught-up in an Orange County DUI Checkpoint, contact the DUI Attorneys of the Law Office of Barry T. Simons immediately for a free, no-cost, DUI Consultation and DUI Case Evaluation. The call you make today could mean the difference between a dismissal and a conviction.

California Eliminates the Choice of Urine Testing In DUI Cases

January 13th, 2013

Existing law provides that a person who is lawfully arrested for
driving under the influence of a drug or the combined influence of an
alcoholic beverage and drug has a choice of whether a chemical test
to determine his or her drug or drug and alcohol level shall be a
blood, breath, or urine test. If the person chooses to submit to a
breath test, he or she may also be requested to submit to a blood or
urine test if the officer has reasonable cause to believe that the
person was driving under the influence of a drug or the combined
influence of an alcoholic beverage and a drug and if the officer has
a clear indication that a blood or urine test will reveal evidence of
the person being under the influence. Existing law exempts a
person who is afflicted with hemophilia, or a heart condition and is
using anticoagulant, from the blood test.
This bill would revise these provisions to delete the person’s
option to choose a chemical test of his or her urine for the purpose
of determining the drug content of his or her blood. The bill would
require that if a blood test is unavailable, then the person is
deemed to have given his or her consent to a urine test. The bill
would also require that if the person is lawfully arrested for
driving under the influence of a drug or the combined influence of an
alcoholic beverage and any drug, the person only has the choice of
either a blood or breath test. The bill would delete the option of a
urine test, except as required as an additional test. The bill
would require those persons exempted from the blood test to submit
to, and complete, a urine test.
If the United States Supreme Court overrules Missouri v. McNeely and rules that States must obtain search warrants before taking non-consensual blood tests then this law also creates the potential for requiring search warrants in cases where the subject refuses to take a blood test in a DUI drugss case since urine testing is a less intrusive means of obtaining a testable sample to determine the presence of drugs.

Orange County’s D.M.V. Driver Safety Office Is Moving July 24, 2012

July 8th, 2012

Orange County’s D.M.V. Driver Safety Office is Moving!

The DMV is moving!  That’s right, the Orange County, California DMV Driver Safety Office is moving from Irvine, Californiato Orange, California.  If you were arrested for a DUI in North or South Orange County, Laguna Beach, Newport Beach, Huntington Beach or Seal Beach, California, Irvine or Fullerton, California, or any other Orange County, California City for that matter, your DMV APS, or any other type of DMV Administrative hearing, will no longer be heard at the Irvine Driver Safety Office in Irvine, California, because effective July 24th, 2012, these hearings will be held in the City of Orange, at the Orange Driver Safety Office in Orange, California, located at:

City of Orange Driver Safety Office
790 The City Drive, #410
Orange, CA 92868
 
Telephone: (714) 703-2511

DUI Drugs & Combined Influence Legal Update (Assembly Bill 2020)

July 8th, 2012

Vehicle Code Section 23612—The Implied Consent Statutes & California Assembly Bill 2020

Well, it looks like the California Department of Motor Vehicles (DMV) and California Law Enforcement Agencies are finally going to get their way by removing a urine test as a chemical test option for those lawfully arrested for driving under the influence of drugs (DUI Drugs) or the combined influence of alcohol and drugs under Vehicle Code Section 23612.

Existing law provides that a person who is lawfully arrested for driving under the influence of any drug or the combined influence of an alcoholic beverage and any drug, the person has the choice of whether the test shall be of his or her blood, breath, or urine, and the officer shall advise the person that he or she has that choice.  If the person chooses to submit to a breath test, he or she may also be requested to submit to a blood or urine test if the officer has reasonable cause to believe that the person was driving under the influence of a drug or the combined influence of an alcoholic beverage and a drug and if the officer has a clear indication that a blood or urine test will reveal evidence of the person being under the influence. Existing law exempts a person who is afflicted with hemophilia, or a heart condition and is using anticoagulant, from the blood test.

AB 2020 revises these provisions to delete the person’s option to choose a chemical test of his or her urine for the purpose of determining the drug content of his/her blood. The bill requires that if a blood test is unavailable, then the person is deemed to have given his or her consent to a urine test. This bill deletes the option of a urine test, except as required as an additional test when a blood test is unavailable. The bill would also require those persons exempted from the blood test, such as hemophiliacs and/or those with a heart condition that requires the use of an anticoagulant, to submit to, and complete, a urine test.

Vehicle Code 23612—The Current Version

23612.  (a) (1) (A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.

(B) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or urine for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation ofSection23140,23152, or 23153.

(C) The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation ofSection23140,23152, or 23153.

(D) The person shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153, and (i) the suspension of the person’s privilege to operate a motor vehicle for a period of one year, (ii) the revocation of the person’s privilege to operate a motor vehicle for a period of two years if the refusal occurs within 10 years of a separate violation of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code that resulted in a conviction, or if the person’s privilege to operate a motor vehicle has been suspended or revoked pursuant to Section 13353, 13353.1, or 13353.2 for an offense that occurred on a separate occasion, or (iii) the revocation of the person’s privilege to operate a motor vehicle for a period of three years if the refusal occurs within 10 years of two or more separate violations of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, or any combination thereof, that resulted in convictions, or if the person’s privilege to operate a motor vehicle has been suspended or revoked two or more times pursuant to Section 13353, 13353.1, or 13353.2 for offenses that occurred on separate occasions, or if there is any combination of those convictions or administrative suspensions or revocations.

(2) (A) If the person is lawfully arrested for driving under the influence of an alcoholic beverage, the person 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. If the person arrested either is incapable, or states that he or she is incapable, of completing the chosen test, the person shall submit to the remaining test. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.

(B) If the person is lawfully arrested for driving under the influence of any drug or the combined influence of an alcoholic beverage and any drug, the person has the choice of whether the test shall be of his or her blood, breath, or urine, and the officer shall advise the person that he or she has that choice.

(C) A person who chooses to submit to a breath test may also be requested to submit to a blood or urine test if the officer has reasonable cause to believe that the person was driving under the influence of a drug or the combined influence of an alcoholic beverage and a drug and if the officer has a clear indication that a blood or urine test will reveal evidence of the person being under the influence. The officer shall state in his or her report the facts upon which that belief and that clear indication are based. The person has the choice of submitting to and completing a blood or urine test, and the officer shall advise the person that he or she is required to submit to an additional test and that he or she may choose a test of either blood or urine. If the person arrested either is incapable, or states that he or she is incapable, of completing either chosen test, the person shall submit to and complete the other remaining test.

(3) If the person is lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153, and, because of the need for medical treatment, the person is first transported to a medical facility where it is not feasible to administer a particular test of, or to obtain a particular sample of, the person’s blood, breath, or urine, the person has the choice of those tests that are available at the facility to which that person has been transported. In that case, the officer shall advise the person of those tests that are available at the medical facility and that the person’s choice is limited to those tests that are available.

(4) The officer shall also advise the person that he or she does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law.

(5)(a) A person who is unconscious or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn his or her consent and a test or tests may be administered whether or not the person is told that his or her failure to submit to, or the noncompletion of, the test or tests will result in the suspension or revocation of his or her privilege to operate a motor vehicle. A person who is dead is deemed not to have withdrawn his or her consent and a test or tests may be administered at the direction of a peace officer.

(b) A person who is afflicted with hemophilia is exempt from the blood test required by this section.

(c) A person who is afflicted with a heart condition and is using an anticoagulant under the direction of a licensed physician and surgeon is exempt from the blood test required by this section.

(d) (1) A person lawfully arrested for an offense allegedly committed while the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153 may request the arresting officer to have a chemical test made of the arrested person’s blood or breath for the purpose of determining the alcoholic content of that person’s blood, and, if so requested, the arresting officer shall have the test performed.

(2) If a blood or breath test is not available under subparagraph (A) of paragraph (1) of subdivision (a), or under subparagraph (A) of paragraph (2) of subdivision (a), or under paragraph (1) of this subdivision, the person shall submit to the remaining test in order to determine the percent, by weight, of alcohol in the person’s blood. If both the blood and breath tests are unavailable, the person shall be deemed to have given his or her consent to chemical testing of his or her urine and shall submit to a urine test.

(e) If the person, who has been arrested for a violation of Section 23140, 23152, or 23153, refuses or fails to complete a chemical test or tests, or requests that a blood or urine test be taken, the peace officer, acting on behalf of the department, shall serve the notice of the order of suspension or revocation of the person’s privilege to operate a motor vehicle personally on the arrested person. The notice shall be on a form provided by the department.

(f) If the peace officer serves the notice of the order of suspension or revocation of the person’s privilege to operate a motor vehicle, the peace officer shall take possession of all driver’s licenses issued by this state that are held by the person. The temporary driver’s license shall be an endorsement on the notice of the order of suspension and shall be valid for 30 days from the date of arrest.

(g) (1) The peace officer shall immediately forward a copy of the completed notice of suspension or revocation form and any driver’s license taken into possession under subdivision (f), with the report required by Section 13380, to the department. If the person submitted to a blood or urine test, the peace officer shall forward the results immediately to the appropriate forensic laboratory. The forensic laboratory shall forward the results of the chemical tests to the department within 15 calendar days of the date of the arrest.

(2) (A) Notwithstanding any other provision of law, a document containing data prepared and maintained in the governmental forensic laboratory computerized database system that is electronically transmitted or retrieved through public or private computer networks to or by the department is the best available evidence of the chemical test results in all administrative proceedings conducted by the department. In addition, any other official record that is maintained in the governmental forensic laboratory, relates to a chemical test analysis prepared and maintained in the governmental forensic laboratory computerized database system, and is electronically transmitted and retrieved through a public or private computer network to or by the department is admissible as evidence in the department’s administrative proceedings. In order to be admissible as evidence in administrative proceedings, a document described in this subparagraph shall bear a certification by the employee of the department who retrieved the document certifying that the information was received or retrieved directly from the computerized database system of a governmental forensic laboratory and that the document accurately reflects the data received or retrieved.

(B) Notwithstanding any other provision of law, the failure of an employee of the department to certify under subparagraph (A) is not a public offense.

(h) A preliminary alcohol screening test that indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving a vehicle in violation of Section 23140, 23152, or 23153 is a field sobriety test and may be used by an officer as a further investigative tool.

(i) If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. The person’s obligation to submit to a blood, breath, or urine test, as required by this section, for the purpose of determining the alcohol or drug content of that person’s blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the person’s right to refuse to take the preliminary alcohol screening test.

Amended Sec. 4, Ch.740, Stats. 1998. Effective January 1, 1999. Operative July 1, 1999. Supersedes Ch.118.
Amended and renumbered from 23157 Sec. 18.4, Ch. 22, Stats. 1999. Effective May 26, 1999. Operative July 1, 1999.
Amended Sec. 2, Ch. 854, Stats. 1999. Effective October 1, 1999. Supersedes Ch. 853.
Amended Sec. 26, Ch. 287, Stats. 2000. Effective January 1, 2001.
Amended Sec. 2, Ch. 254, Stats. 2003. Effective January 1, 2004.
Amended Sec. 19, Ch. 550, Stats. 2004. Effective January 1, 2005.
Amended Sec. 37,Ch. 747, Stats. 2007. Effective January 1, 2008.

Vehicle Code 23612—As Amended by Assembly Bill 2020

23612.  (a) (1) (A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.

(B) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation ofSection23140,23152, or 23153. If a blood test is unavailable, the person shall be deemed to have given his or her consent to chemical testing of his or her urine and shall submit to a urine test.

(C) The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation ofSection23140,23152, or 23153.

(D) The person shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153, and (i) the suspension of the person’s privilege to operate a motor vehicle for a period of one year, (ii) the revocation of the person’s privilege to operate a motor vehicle for a period of two years if the refusal occurs within 10 years of a separate violation of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153 of this code, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code that resulted in a conviction, or if the person’s privilege to operate a motor vehicle has been suspended or revoked pursuant to Section 13353, 13353.1, or 13353.2 for an offense that occurred on a separate occasion, or (iii) the revocation of the person’s privilege to operate a motor vehicle for a period of three years if the refusal occurs within 10 years of two or more separate violations of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153 of this code, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, or any combination thereof, that resulted in convictions, or if the person’s privilege to operate a motor vehicle has been suspended or revoked two or more times pursuant to Section 13353, 13353.1, or 13353.2 for offenses that occurred on separate occasions, or if there is any combination of those convictions or administrative suspensions or revocations.

(2) (A) If the person is lawfully arrested for driving under the influence of an alcoholic beverage, the person 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. If the person arrested either is incapable, or states that he or she is incapable, of completing the chosen test, the person shall submit to the remaining test. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.

(B) If the person is lawfully arrested for driving under the influence of any drug or the combined influence of an alcoholic beverage and any drug, the person 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.

(C) A person who chooses to submit to a breath test may also be requested to submit to a blood test if the officer has reasonable cause to believe that the person was driving under the influence of a drug or the combined influence of an alcoholic beverage and a drug and if the officer has a clear indication that a blood test will reveal evidence of the person being under the influence. The officer shall state in his or her report the facts upon which that belief and that clear indication are based. The officer shall advise the person that he or she is required to submit to an additional test. The person shall submit to and complete a blood test. If the person arrested is incapable of completing the blood test, the person shall submit to and complete a urine test.

(3) If the person is lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153, and, because of the need for medical treatment, the person is first transported to a medical facility where it is not feasible to administer a particular test of, or to obtain a particular sample of, the person’s blood or breath, the person has the choice of those tests, including a urine test, that are available at the facility to which that person has been transported. In that case, the officer shall advise the person of those tests that are available at the medical facility and that the person’s choice is limited to those tests that are available.

(4) The officer shall also advise the person that he or she does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law.

(5) A person who is unconscious or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn his or her consent and a test or tests may be administered whether or not the person is told that his or her failure to submit to, or the noncompletion of, the test or tests will result in the suspension or revocation of his or her privilege to operate a motor vehicle. A person who is dead is deemed not to have withdrawn his or her consent and a test or tests may be administered at the direction of a peace officer.

(b) A person who is afflicted with hemophilia is exempt from the blood test required by this section, but shall submit to, and complete, a urine test.

(c) A person who is afflicted with a heart condition and is using an anticoagulant under the direction of a licensed physician and surgeon is exempt from the blood test required by this section, but shall submit to, and complete, a urine test.

(d) (1) A person lawfully arrested for an offense allegedly committed while the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153 may request the arresting officer to have a chemical test made of the arrested person’s blood or breath for the purpose of determining the alcoholic content of that person’s blood, and, if so requested, the arresting officer shall have the test performed.

(2) If a blood or breath test is not available under subparagraph (A) of paragraph (1) of subdivision (a), or under subparagraph (A) of paragraph (2) of subdivision (a), or under paragraph (1) of this subdivision, the person shall submit to the remaining test in order to determine the percent, by weight, of alcohol in the person’s blood. If both the blood and breath tests are unavailable, the person shall be deemed to have given his or her consent to chemical testing of his or her urine and shall submit to a urine test.

(e) If the person, who has been arrested for a violation of Section 23140, 23152, or 23153, refuses or fails to complete a chemical test or tests, or requests that a blood or urine test be taken, the peace officer, acting on behalf of the department, shall serve the notice of the order of suspension or revocation of the person’s privilege to operate a motor vehicle personally on the arrested person. The notice shall be on a form provided by the department.

(f) If the peace officer serves the notice of the order of suspension or revocation of the person’s privilege to operate a motor vehicle, the peace officer shall take possession of all driver’s licenses issued by this state that are held by the person. The temporary driver’s license shall be an endorsement on the notice of the order of suspension and shall be valid for 30 days from the date of arrest.

(g) (1) The peace officer shall immediately forward a copy of the completed notice of suspension or revocation form and any driver’s license taken into possession under subdivision (f), with the report required by Section 13380, to the department. If the person submitted to a blood or urine test, the peace officer shall forward the results immediately to the appropriate forensic laboratory. The forensic laboratory shall forward the results of the chemical tests to the department within 15 calendar days of the date of the arrest.

(2) (A) Notwithstanding any other law, a document containing data prepared and maintained in the governmental forensic laboratory computerized database system that is electronically transmitted or retrieved through public or private computer networks to or by the department is the best available evidence of the chemical test results in all administrative proceedings conducted by the department. In addition, any other official record that is maintained in the governmental forensic laboratory, relates to a chemical test analysis prepared and maintained in the governmental forensic laboratory computerized database system, and is electronically transmitted and retrieved through a public or private computer network to or by the department is admissible as evidence in the department’s administrative proceedings. In order to be admissible as evidence in administrative proceedings, a document described in this subparagraph shall bear a certification by the employee of the department who retrieved the document certifying that the information was received or retrieved directly from the computerized database system of a governmental forensic laboratory and that the document accurately reflects the data received or retrieved.

(B) Notwithstanding any other law, the failure of an employee of the department to certify under subparagraph (A) is not a public offense.

(h) A preliminary alcohol screening test that indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving a vehicle in violation of Section 23140, 23152, or 23153 is a field sobriety test and may be used by an officer as a further investigative tool.

(i) If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. The person’s obligation to submit to a blood, breath, or urine test, as required by this section, for the purpose of determining the alcohol or drug content of that person’s blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the person’s right to refuse to take the preliminary alcohol screening test.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_2001-2050/ab_2020_bill_20120419_amended_asm_v98.html