Law Review: Choice of blood or breath test for DUI? |

Law Review: Choice of blood or breath test for DUI?

Alexander Vannesse was the driver of a vehicle involved in a collision.

Ventura Police Officer Baumann, a certified drug recognition expert, responded to the scene. After his preliminary investigation, he arrested Vannesse for “driving under the influence.”


Concluding Vannesse was under the influence of drugs (not alcohol), Officer Baumann advised Vannesse that he was required to submit to a blood test, and failure to do so would result in suspension of his driving privilege for one year. Baumann did not advise Vannesse that under California law he had a choice between a blood or breath test, nor did he advise him that he could refuse to provide any sample.

With those facts, you would think Vannesse could successfully challenge the blood test evidence that convicted him of driving under the influence. You would think.


Vehicle Code Section 23612(a)(2)(b) provides in part, “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 office shall advise the person that he or she has that choice.”

Officer Baumann clearly did not comply with Section 23612. So the question for the Court of Appeal was whether the blood sample could be used in court against Vannesse.

By the way, the reason the officer did not follow the law and advise the under‑the‑influence driver that he had the choice of taking a breath test was because breath tests only test for alcohol. Drugs in the system do not show up on a breath test.

In today’s new world of driving after ingesting marijuana, the outcome of this Court of Appeal case takes on enhanced meaning.


The Court of Appeal essentially overlooked the mandate of Section 23612(a)(2)(b) because of Section 23612(a)(2)(C), which recites that if an officer has “reasonable cause” to believe that the person is driving under the influence of a drug or drugs and alcohol, the officer shall advise the driver that he/she is required to submit to an additional test … a blood test.

Officer Baumann inappropriately and illegally skipped step one by not advising Vannesse initially that he had a choice of a blood or breath test, then because he suspected drugs, advising Vannesse he must submit to a blood test or lose his license. That was the proper procedure.


The Court of Appeal upheld Officer Baumann’s conduct because he believed Vannesse was under the influence of drugs, so Section 23612(a)(2)(C) applied. After giving Vannesse the choice of a blood or breath test, he could then have instructed Vannesse to take a blood test or lose his license, i.e., in the end Vannesse would have had to take the blood test or lose his license. No harm, no foul.

The blood test result would have been admissible under the so‑called inevitable discovery doctrine: “Illegally seized evidence may be used where it would have been discovered by the police through lawful means.”

With the specter of more drivers driving under the influence of cannabis, Section 23612(a)(2)(C) is a valuable tool for law enforcement.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at or

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