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.

parole violation attorney in La Mesa

What Happens If I Violate My Parole in California?

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We do not handle parole violation cases. This blog post is only for informational purposes.

When you are granted parole in California, you are being given the opportunity to live outside the state prison system, but you are still under the control of the state. The consequences of violating your parole can be severe and life-changing.

If you have made a mistake while on parole in California or have been falsely accused of breaking the terms of your parole, you could be facing grave consequences. The parole conditions in this state can be harsh, which means you don’t want to take it lightly.

What is California Parole Law?

With few exceptions, California is a mandatory parole state. This means that any inmate who completes their state prison sentence will automatically be placed on parole once released. Eligibility for parole may occur based on a variety of factors such as the crime committed, the inmate’s sentence, any work time or “good time” credits, and the date of the conviction.

Common Parole Conditions

Parole conditions in California can be incredibly restrictive. The state still has strong control over you and your legal rights are considerably diminished as a parolee. Some common parole terms include:

  • You consent to a search by law enforcement at any time, with or without cause, and without the need for a search warrant;
  • You consent to reside within specified county limits;
  • You agree not to violate any laws; and
  • Your parole officer will be notified of where you work and live.

If you have been convicted of certain serious felonies, you may be required to register with local authorities. This includes individuals who have been convicted of certain drug crimes, arson, and sex offenses. You may also be restricted from working around or near weapons, from having access to the internet, and from having associations with known gang members.

What Happens If You Violate Your Parole?

If you violate any of the conditions or terms of your parole, you risk revocation of parole, meaning you could be reincarcerated. There are two ways that you can violate parole, and this will determine how the violation is handled.

If you violated your parole but didn’t break any laws, you will face a parole revocation hearing in front of a deputy commissioner for the parole board. If your parole is revoked, you could be sent back to prison for up to one year.

If you broke a law while violating your parole, you will have to face the parole board for a hearing and face additional criminal charges. Even if you are found not guilty of the crime, you still risk having your parole revoked.

Potential Defenses at a California Parole Violation Hearing

Many parole violations are accidental, but this is not a valid defense before the Board of Parole Hearings. Fortunately, this is not a criminal hearing, so there are more relaxed rules regarding evidence. The parole commissioner that decides your case can accept notes, hearsay, and other items as evidence that would not be admissible in a criminal trial.

As a parolee, you still have a right to due process. This means that you are entitled to notice of the allegations and hearings in writing and can have an attorney represent your rights. Your attorney may be able to attack the credibility of the evidence. Other valid defenses in parole violation cases are that either the allegations are untrue or that there were serious mitigating circumstances that explain your actions.

Speak with an Experienced California Parole Violations Attorney

If you have been accused of violating your parole in California, this is not something that you want to leave to chance. In most cases, you won’t be given the benefit of the doubt since the state has a lower burden of proof than in a standard criminal case.

The likelihood of your returning to prison is high, so it is vital that you speak with an experienced and aggressive California parole violations lawyer as quickly as possible. The attorneys at Garmo & Garmo will review the circumstances of your case, advise you of your options, and do everything possible to protect your rights and liberty.

Contact our San Diego office now at 619-441-2500 or reach us online to schedule a free consultation.