can i refuse a breathalyzer in california

Can I Refuse a Breathalyzer Test in CA?

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Being pulled over for DUI is a frightening and unsettling experience, especially if it is the first time this has happened to you. How you handle the stop and subsequent arrest (if you are arrested) will have a major bearing on the outcome of your case. At the initial stop, you may be asked to take a field sobriety test (e.g., walking a straight line, following an object with your eyes, standing on one leg, etc.) and submit to a preliminary alcohol screening (PAS) device test. Once you are placed under arrest and brought to the police station, you will be asked to submit to a chemical test to determine your blood alcohol concentration (BAC).

Should you Refuse the Breathalyzer Test in California?

There is a lot of confusion about whether or not an individual can decline to take a breathalyzer test when they are stopped for DUI. Much of this is because there are actually two different breathalyzer tests that you may be asked to take; the preliminary alcohol screening device test that may occur during the stop, and the chemical (breath, blood, or urine) test that is administered after the arrest.

You Can and Should Refuse the Preliminary Alcohol Screening (PAS) Device Test

The PAS breathalyzer test that the police ask you to take when you are pulled over for DUI is not mandatory, and you can refuse this breathalyzer test without penalty, unless you are under the age of 21. The main purpose of the PAS device test is for the officer to establish probable cause to arrest you for DUI. In general, there is no good reason to take this test. The officer may imply that you are required to take it, and that taking it will help you in your case. This is only true if you are absolutely certain that you are under the legal limit of 0.08 (BAC). 

As a side note, you should also refuse the field sobriety tests for the same reason. These tests are given by an officer who already suspects that you are guilty of drunk driving, and you have no reasonable expectation that they will be administered fairly. Without the results of the field sobriety tests or PAS device test, the officer may lack probable cause to arrest you in the first place; and if you are arrested, the subsequent chemical test that is administered at the police station may be found to be inadmissible at trial.

You Cannot Refuse the Chemical Breath Test without Penalty

The breathalyzer test you are given at the police station after your arrest is mandatory, and if you refuse to take it, you are subject to additional penalties under California’s “implied consent” law.  Implied consent means that when you apply for a driver’s license in California, you are giving your consent to be tested if you are ever arrested for driving under the influence of alcohol or drugs.

Penalties for refusal to take the mandatory chemical breath test include:

  • First-Time DUI: An additional 48 hours in jail, a one-year driver’s license suspension, and an extra six months of DUI school.
  • Second DUI: An additional 96 hours in jail and a two-year driver’s license revocation.
  • Third DUI: An additional 10 days in jail and a three-year driver’s license revocation.
  • Fourth or Subsequent DUI: An additional 18 days in jail along with a three-year driver’s license revocation.

Will Refusing a Breathalyzer Test Help my Criminal Case?

Refusing to take the mandatory chemical test that you are given after being arrested for DUI will not likely help your DUI defense. In fact, your refusal may be used against you in court to help establish your guilt. If you submit to the test, however, it may be possible to challenge the results as inaccurate due to improper administration of the test, faulty machinery, or another reason. Bottom line: there is really no upside to refusing the mandatory breathalyzer test after your arrest.

Arrested for DUI in California? Speak with an Experienced Criminal Defense Attorney

A drunk driving conviction can negatively impact your future in numerous ways. However, being charged for DUI does not mean you will automatically be convicted. Even if you refused the breathalyzer test after you were arrested, there may be ways to mitigate the adverse impact of this mistake, depending on the specific circumstances of your case. The best thing to do is to get in contact with a skilled DUI defense lawyer, so you can review your legal rights and options.

At Garmo and Garmo, we have extensive experience successfully defending individuals charged for DUI and other criminal offenses in San Diego, El Cajon, and throughout Southern California.  Call our office today at 619-441-2500 or send us a message through our online contact form to schedule an initial consultation with one of our attorneys.