In San Diego, California, DUI suspects have the right to CHOOSE between a blood or a breath test if arrested. The Police are SUPPOSED to respect that right. So if someone selects a breath test, the police must give the person that breath test.

The DUI police are not supposed to make the person do a blood test - yet alone force a blood test - if the person verbalizes his choice of a breath test and the machine is available!

If the police do a blood test when the person requested a breath test, the evidence must be thrown out, according to the case of Nelson v. City of Irvine, a federal case articulating the rights of suspects and the obligations of DUI cops.

Yet San Diego Chargers receiver Vincent Jackson was rejected yesterday by a judge when his premier San Diego DUI Attorney Specialist, Cole Casey, asked the court to suppress evidence obtained as a result of Jackson's January arrest on suspicion of a San Diego DUI.

In that motion, Jackson's San Diego DUI defense lawyer said Jackson was forced to have his blood drawn “against his will” after repeatedly requesting a breath test instead, as was his statutory right under the California Vehicle Code and under the precedent set in Nelson v. City of Irvine. In Nelson, top California DUI defense attorney Barry Simons caught the City of Irvine making drunk driving suspects do a blood test when they should have been given their requested choice of a breath test. That federal court basically said: Sorry, Charlie, follow the law. There's no need for a blood test. You have a breath test available. Uh, you are the law but you are not above the law. Cases thrown out!

After being escorted to the lovely San Diego jail, Jackson elected to take a breath test. A California Highway Patrol officer then set it up for him, according to the officer's potentially tainted arrest report. But the officer apparently became impatient when the breath test machine didn't accept the sample right away. Jackson then was told he had to do a blood test even though he wanted the breath test. According to California and federal laws, the cops are not supposed to do that. The way they treated Jackson was wrong.

If the DUI cops were really playing fair, they'd have a video.