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 you to take a breathalyzer at two points in a DUI case.
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.
The officer can request again that you submit to a breathalyzer test after your arrest as part of your processing. This test is the formal breath test required by law. Refusing to take the test can result in harsher penalties.
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 to believe you’re driving under the influence of alcohol or drugs in order to pull you over.
However, if you’ve been pulled over for some other driving offense, and the officer suspects that 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 content level (BAC) and not the presence of drugs in your system.
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In California, as in many other states, you agreed when you got your license 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.
An experienced DUI lawyer might be able to fight the results in court later, without the additional penalties hanging over you that come with refusal 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 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:
- Additional 48 hours in jail
- Year-long suspension of your driver’s license
- Extra six months of DUI school
Second Offense DUI Refusal
For a second DUI arrest, refusal to take a breathalyzer test includes 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 includes an additional 10 days in jail and a three-year suspension of your driver’s license
Fourth Offense or More DUI Refusal
If you are facing a fourth or more DUI charge, then the penalties for refusing the breathalyzer includes an additional 18 days in jail and a three-year suspension of your driver’s license
Of course, all of these penalties for refusing to take the breathalyzer or blood test are tacked on to whatever penalties you face if convicted of DUI. With no real benefits to refusing a breathalyzer test when required, it doesn’t make much sense to refuse and face these harsher penalties.
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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.
If, on the other hand, you did have a drink or two, even if you do not feel intoxicated, you should avoid the breathalyzer while you can. The officer is asking you to take the test so that they will have probable cause to arrest you. Refusal to take the breathalyzer or any field sobriety tests could leave the officer without probable cause.
While it is still possible that the officer could arrest you if they really suspect you have been drinking and driving, your attorney will be in a position to 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.
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Can You Fight the Charges Resulting From Refusal to Do a Breathalyzer Test in California?
Yes, we can help you fight the charges related to the refusal to take the breathalyzer. Here are a couple of the possible defenses we might be able to 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. And if the DUI charges are dropped, you cannot face the enhanced charges for DUI refusal.
It’s important to note, however, that dropping these charges does not affect any potential license suspension through the DMV.
Officer’s Failure to Inform
If the officer failed to inform you of the potential consequences for refusal 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.
Contact a Los Angeles DUI Lawyer for a Free Consultation
Whatever the circumstances of your case, you need a lawyer working with you to help make sure you get the best possible outcome for you and your family. If you or a loved one has been accused of DUI, you need an experienced Los Angeles DUI defense lawyer on your side. We’re available to help 24/7. Don’t talk to the police until you’ve spoken with us first.
Our Los Angeles criminal defense firm has decades of experience defending clients charged with DUI and related charges, both misdemeanors, and felonies. We have a proven track record of winning. Call the Simmrin Law Group or use our online contact form to schedule a free, no-obligation case evaluation.