DUI Breathalyzer Test
Refusing a DUI breathalyzer test in California is a complex issue. Understanding your rights during a DUI stop is critical, as refusing a test can lead to significant consequences. The short answer is that you can refuse the first breath test administered before an arrest (unless you are on DUI probation), but after an arrest, you are legally obligated to take a chemical test (breath or blood) under California’s implied consent law. Refusing this post-arrest test can result in severe penalties, including a license suspension.
Types of Breath Tests in California
There are two types of breath tests involved in DUI cases:
- Preliminary Alcohol Screening (PAS) Test:
- This test is usually administered before an arrest at the roadside.
- It helps an officer decide whether to arrest you for DUI.
- You can refuse this test, and if you do, it generally cannot be used against you in court, unless you are on probation or under 21.
- Post-Arrest Breath Test:
- This test is administered after your arrest.
- You are legally required to take this test (or a blood test) under implied consent laws.
- Refusing this test can lead to a license suspension and other serious penalties.
What is California’s Implied Consent Law?
California’s implied consent law means that by driving in the state, you automatically consent to submit to a chemical test if arrested for DUI. Refusing a post-arrest breath or blood test is a violation of this law and can result in:
- A one-year license suspension for a first-time refusal.
- Increased fines.
- 10 days in jail (which can often be negotiated away during pre-trial proceedings).
Consequences of Refusing a Breathalyzer Test
Refusing a post-arrest breath or blood test can lead to several serious consequences:
- DMV License Suspension:
- The DMV will suspend your license for one year on a first refusal.
- Refusing both the breath and blood test is necessary for the suspension to kick in.
- Jail Time:
- You could face 10 days in jail for a refusal, though this is often negotiable.
- Evidence of Guilt:
- In court, a refusal can be used as evidence of guilt, making it harder to defend your case.
The Importance of Proper Admonishment by the Officer
For a refusal to be upheld, the arresting officer must properly advise you of the consequences of refusing the chemical test. The officer must inform you that your license will be suspended (not may be suspended). If the officer does not correctly advise you, this can serve as a defense during your DMV hearing.
This is why it is critical to request the officer’s body cam footage during your DMV hearing. The footage can reveal if the officer failed to properly admonish you, which could lead to the reinstatement of your license.
Special Circumstances and Exceptions
There are exceptions to the implied consent rule, such as:
- Medical conditions preventing you from taking a breath test (e.g., respiratory issues).
- Blood test complications.
- The officer failing to properly inform you of your rights and the consequences of refusal.
In these situations, a skilled DUI attorney can challenge the suspension and refusal charges.
How a DUI Attorney Can Help
If you’ve refused a chemical test, it’s crucial to contact an experienced DUI attorney immediately. An attorney can:
- Subpoena body cam footage and other evidence to verify the officer’s actions.
- Challenge the legality of the stop, potentially invalidating the refusal.
- Help navigate the complex DMV hearing process and avoid a one-year suspension.
The DMV Hearing Process
Refusing a post-arrest test complicates the DMV hearing, which determines whether your driving privileges will be suspended. If you lose the DMV hearing, your license will be suspended for one year, regardless of the outcome of the court case. It’s critical to have an attorney who can manage the DMV process and ensure all legal procedures are followed.
What are the legal consequences of refusing a preliminary breath test before an arrest, and how can an attorney assist in navigating these consequences?
There are no legal consequences for refusing a preliminary breath test (PBT) before an arrest—unless you are under 21 or on DUI probation. In many cases, refusing the breath test before an arrest can actually be more advantageous. By doing this, the only alcohol reference point available is the test taken after the arrest. With the right drinking pattern, an attorney can set up a rising blood alcohol defense based on this.
How does being on DUI probation affect my ability to refuse a breathalyzer test, and what legal strategies can an attorney employ in such situations?
f you are on DUI probation, you cannot legally refuse a breathalyzer test. When you agreed to probation, part of that agreement included a condition that you must submit to any chemical test requested by a police officer. This is non-negotiable, and there’s nothing an attorney can do to get around this requirement. However, if you are caught violating this condition, the legal fight would center around a 1538.5 motion to suppress, which could be used to challenge the validity of the stop or the breath test administration.
What are the differences between a preliminary breath test and an evidentiary breath test, and how can an attorney help me understand my rights and obligations concerning each?
The main difference is that a preliminary breath test (PBT) is a pre-arrest screening tool, whereas an evidentiary chemical test is used as actual evidence in a DUI case. However, both can be admitted in court if the foundation is properly laid.
Your rights and obligations depend on which test is being administered:
A preliminary breath test is optional unless you are under 21 or on DUI probation.
An evidentiary chemical test is subject to implied consent laws—meaning if you refuse, your license will be suspended, and you will face additional legal consequences. This is known as the “Post-Arrest Admonition” requirement.
If I refused a breathalyzer test and am now facing a license suspension, what steps can an attorney take to challenge the suspension and protect my driving privileges?
If you refused a breath test and are now facing a license suspension, the most important step is to request an APS DMV hearing to challenge the refusal. An attorney will examine whether the officer properly read the refusal admonition.
The key issue is whether the officer clearly stated that your license “will” be suspended if you refuse. Many non-CHP officers mistakenly phrase it as “could” be suspended, which can be used to challenge the refusal in a DMV hearing. In many cases, obtaining the officer’s body cam or dashcam footage through the subpoena process is critical to proving this.
How can an attorney assist in building a defense if I complied with the breath test but believe the results were inaccurate or improperly obtained?
If you believe your breath test results were inaccurate, an attorney can subpoena the accuracy and maintenance logs for the breathalyzer machine to check whether it was properly calibrated.
If you suspect the test was improperly obtained in violation of your 1538.5 motion rights or constitutional protections, an attorney can review your case to determine if a motion to suppress is appropriate. This can potentially get the test results thrown out if your rights were violated during the DUI stop or breath test administration.
Conclusion: Should You Refuse a DUI Breath Test?
While it is not illegal to refuse the preliminary alcohol screening test (unless on probation or under 21), refusing the post-arrest chemical test can result in a license suspension and additional penalties. If you are facing a refusal charge, it’s essential to contact a DUI attorney who can fight the charges and protect your driving privileges. The difference between having an experienced attorney and going it alone can be the difference between facing jail time and losing your license, or successfully fighting the suspension.
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