Can You Refuse a Breathalyzer Test in California if You Are Suspected of a DUI?

Mar 19, 2018

Can You Refuse a Breathalyzer Test in California if You Are Suspected of a DUI?

You had a few beers and left the bar thinking you were sober enough to drive, and next thing you know, you are pulled over by a police officer. All of a sudden, you are overcome with panic questioning whether your BAC will be over the legal limit if the officer asks you to take a breathalyzer test. Laws regarding driving under the influence (DUI) convictions vary from state to state, so it is important to do your research. If you or someone you love has been charged with a DUI, consult with a Ventura drunk driving defense attorney about what your rights are under the laws of California.

Implied Consent Laws for DUIs in California

An officer can make an arrest for a DUI if he or she finds “probable cause” to believe that you were driving under the influence of alcohol. A driver who has been suspected of driving drunk can choose between taking a blood test and taking a breath test. If blood or breath tests are not available, a driver may be required to take a urine test.

California Vehicle Code Section 23612 states that any driver who has been lawfully arrested for a DUI is required to submit to a chemical or blood test to determine their blood alcohol concentration (BAC). You may refuse to submit to a preliminary breath test that is performed before an arrest using a hand-held preliminary alcohol screening device. Refusal to submit a preliminary breath test is allowed unless:

  1. You are under age 21; or
  2. You are on probation for a prior DUI conviction.

Santa Barbara, CA DUI Defense Attorneys

If you have been lawfully arrested for driving under the influence, you are required to submit to a chemical test. The arresting officer must provide the driver with a warning of the consequences and description of the choice to take a blood or breath test. Many people believe that choosing a breath test over a blood test is the wiser choice because the validity of a breath test is easier to challenge in court.

In Birchfield v. North Dakota (2016), The US Supreme Court held that a breathalyzer test can be administered as part of a search when you are arrested. However, they held that a blood test was too intrusive, and police cannot perform this test without your consent or a search warrant. So, while they can still require you to take a breath test, they cannot force you to take a blood test.

Penalties for Refusing a Breathalyzer in CA

The CA Department of Motor Vehicles DUI information page provides that if you are over the age of 21 and you refused to take a blood, breath, or urine (if applicable) test, you will face the following penalties:

  • First offense – 1-year license suspension
  • Second offense (within 10 years) – 2-year license revocation
  • Third or subsequent offense (within 10 years) – 3-year license revocation

If you are under the age of 21 and refused to submit to preliminary alcohol screening test (PAS) or chemical test, you will face the following penalties:

  • First offense – 1-year license suspension
  • Second offense (within 10 years) – 2-year license revocation
  • Third or subsequent offense (within 10 years) – 3-year license revocation

You can also face the penalties for DUI offenses on top of these refusal penalties.

Implied Refusal and DUI Hearings

An “express refusal” is when a driver deliberately refuses to submit to chemical testing to determine his or her BAC. “Implied refusals” occur when a driver does not expressly refuse to submit to a chemical test, but still does not submit. In some instances, a court will dismiss charges for an implied refusal. Some common examples of implied refusals include:

  • A driver refused to take a breath test, and police proceeded to have blood drawn from the driver anyway.
  • A driver was completely unconscious or was in and out of consciousness and did not have the capacity to consent or refuse chemical testing.
  • A driver chooses a breath test but did not blow hard enough or deliberately blocked the mouthpiece so that the sample provided was insufficient to make a BAC determination. In this case, a driver might have been physically ill or injured and thus was unable to provide a sample. It may also be the case that the breathalyzer device was broken or malfunctioning at the time of testing.

After being arrested for a DUI, it is important that drivers write down as much information as possible. A detailed description of the chain of events that occurred on the day of the arrest can be a useful tool in avoiding a DUI conviction. In many cases, the order of events is vital. If a police officer does not advise a driver of California’s implied consent law or the refusal occurred before arrest, a judge may excuse the driver’s refusal.

Ventura County DUI Defense Attorneys

If you were charged with a DUI, do not wait any longer to contact an experienced Ventura criminal defense lawyer at the Law Offices of Bamieh & De Smeth. The penalties that you can face for a DUI conviction can include hefty fines and jail time. Our attorneys have experience litigating these types of cases, and we fight tirelessly to protect the legal rights of our clients. Call the Law Offices of Bamieh & De Smeth today at (805) 643-5555 to schedule a free consultation with a DUI defense attorney you can trust.