When pulled over on suspicion of driving under the influence of alcohol or drugs (DUI), you will likely be asked to submit to a breathalyzer test. If you find yourself in this situation, it is important to know your rights. California law allows a law enforcement officer to request that you take a breathalyzer if they suspect you were driving under the influence.
The officer will first ask during the traffic stop before any arrest is made. This is known as the Preliminary Alcohol Screening (PAS) test. You can refuse to take the PAS unless you are under the age of 21 or on probation for a prior DUI conviction. However, refusal may result in an automatic arrest if the officer has good reason to suspect you’re driving impaired.
After a DUI Arrest
After your arrest, as part of your processing, the officer can request again that you submit to a breathalyzer test. This test is the formal breath test required by law. Refusing to take the test can result in harsher penalties.
For a free legal consultation, call (310) 896-2723
What Happens When You Are Stopped for Suspicion of DUI?
Being pulled over for suspicion of DUI can be a scary experience. In California, a police officer needs probable cause (reasonable grounds) to pull you over.
If you’re pulled over for a possible DUI or some other driving offense and the officer suspects you’ve been drinking or are impaired from drug use, they will ask you to submit to a breathalyzer test.
You may later need to undergo a blood test as well because the breathalyzer only indicates blood alcohol concentration (BAC) and not the presence of drugs in your system.
Implied Consent
In California, as in many other states, when you got your license, you agreed to submit to chemical testing of your blood or breath at the request of law enforcement if you are arrested for driving under the influence. This agreement is commonly known as “Implied Consent.”
Refusal to submit to a breathalyzer or blood alcohol test after you’ve already been arrested for DUI can result in harsher penalties than an actual DUI conviction. Refusal to take the PAS will not assure you are safe from arrest if the officer believes you have been driving under the influence.
A DUI lawyer from our firm may be able to fight the results in court later, without the additional penalties hanging over you that come with refusing to take the breathalyzer. It is typically not in your best interest to refuse a breathalyzer if you have already been arrested.
Penalties for BAC Test Refusal
If you refuse the breathalyzer, blood test, or urine test after an arrest, you’ll face additional penalties if you are convicted of DUI. These penalties vary based on whether this is a first offense or a repeat offense.
First Offense DUI Refusal
If you refuse to take a breathalyzer test during your first DUI arrest, the additional penalties could include:
- An additional 48 hours in jail
- A year-long suspension of your driver’s license
- An extra six months of DUI school
Second Offense DUI Refusal
For a second DUI arrest, refusal to take a breathalyzer test comes with an additional 96 hours in jail and a two-year suspension of your driver’s license.
Third Offense DUI Refusal
When facing a third offense for DUI, refusal to take a breathalyzer test comes with an additional ten days in jail and a three-year suspension of your driver’s license.
Fourth Offense or Beyond DUI Refusal
If you are facing a fourth DUI charge or a charge beyond your fourth, then the penalties for refusing the breathalyzer include an additional 18 days in jail and a three-year suspension of your driver’s license.
Of course, all these penalties for refusing to take the breathalyzer or blood test are tacked onto whatever penalties you face if you’re convicted of DUI. With no real benefits to refusing a breathalyzer test when required, it doesn’t make much sense to refuse a test and face these harsher penalties.
Complete a Free Case Evaluation form now
What About Refusing the Breathalyzer Before an Arrest?
It is never a good idea to refuse the breathalyzer after an arrest or if otherwise required. However, refusing to take the test before you are arrested if you are over 21 and have no previous DUI charges can be beneficial. If you know for a fact that you are not going to blow over the legal limit, then go ahead and take the test, as it will help prove your innocence.
While it is still possible that the officer could arrest you if they suspect you have been drinking and driving, your attorney could challenge the validity of the arrest. Proving that the officer did not have probable cause could result in any subsequent evidence recovered, including any chemical tests, being thrown out.
Can You Fight the Charges Resulting from Refusal to Do a Breathalyzer Test in California?
Yes, you can fight the charges related to the refusal to take the breathalyzer, and we can help. Here are a couple of the possible defenses we could use in your case:
Unlawful DUI Arrest
If the court finds that the arresting officer did not have sufficient reason to pull you over in the first place or probable cause to place you under arrest, then the DUI charges will be dropped. If the DUI charges are dropped, you cannot face the enhanced charges for breathalyzer test refusal.
However, these charges being dropped does not prevent any potential license suspension through the DMV.
Officer’s Failure to Inform
If the officer failed to inform you of the potential consequences of refusing to take the breathalyzer or blood test, we may be able to get the enhanced refusal charges dropped. By law, the police officer is required to give you a clear, detailed, and concise explanation of the consequences of refusing to take the breathalyzer.
Other Potential Defenses
If you’re being charged with DUI or another criminal act, there may be another defense for your case. For example, your lawyer may be able to defend your actions as an innocent mistake. If you mistakenly took an illegal substance and drove, this could be considered a simple mistake and your charge may be considered a misunderstanding.
Alternatively, there may simply be insufficient evidence against you. In this case, your attorney could argue the evidence isn’t strong enough or there just isn’t enough evidence to convict you beyond a reasonable doubt.
There are additional defenses your attorney may use, such as false accusation, mistake of fact, entrapment, or illegally acquired evidence. There may be many ways to defend you, and you can be confident your attorney will consider each of them.
How Else Can Your Firm Help Me?
We can help you in any situation involving criminal charges, including a DUI or DWI (driving while impaired). We can help by:
Speaking With the Authorities and Prosecutors on Your Behalf
If you’re charged with a crime, the police and prosecution can question you, and your answers can be used to prosecute you. However, you do not have to and should not submit to questioning. Instead, you should let one of our firm’s DUI lawyers speak with the authorities for you.
Investigating Your Charges for Your Case
You may have a valid case against your charges. However, you’ll have to establish your case with evidence of your innocence, such as the police report, any traffic camera footage, and witness testimony.
Your lawyer will look for such evidence during their investigation. Additionally, your lawyer will look at the evidence the prosecution may have against you to see if it can be invalidated.
Determining What Your Options Are
If you’re charged with a crime, you may be offered bail. Your criminal defense attorney can request a low bail payment amount for you.
Alternatively, you may be offered a plea bargain for a lesser charge with lighter penalties. Your attorney can review the plea bargain for you to check whether it’s a fair and favorable deal.
You might not have to worry in the future about your criminal charges. They may be removed or hidden from your criminal record if your record is otherwise clean and if your attorney can convince the judge to expunge your charges.
About Our DUI Defense Attorneys
Our criminal defense lawyers fight for the underdog, especially if the charges are unfounded or unreasonable. This means we fight for a dismissal or acquittal of unfounded charges or a reduction of unreasonable charges. We’ll fight for you even if it means taking your case to court. Also, since we have such strong relationships with individuals in the legal space, we have many resources available to us.
Our attorneys have decades of experience handling DUI, DWI, and other criminal cases, and our lead attorney and owner, Michael Simmrin, has much experience handling jury trials. To date, he has handled over 100 jury trials and helped thousands of clients in situations like yours. You can be confident he can help you, too.
Connect with Our Lawyers for a Free Consultation
Whatever the circumstances of your case may be, you might want a lawyer working with you toward a fair outcome. If you or a loved one has been accused of DUI, you should have a DUI defense lawyer on your side. We’re available to talk to you 24/7. Don’t talk to the police until you’ve spoken with us first.
Our criminal defense firm has decades of experience defending clients charged with DUI and related charges, including both misdemeanors and felonies. We have a proven track record of winning. Contact Simmrin Law Group by calling or filling out our online contact form. We offer free consultations.
Call or text (310) 896-2723 or complete a Free Case Evaluation form