Should You Refuse a Breathalyzer in California? What Drivers Should Know
Should You Refuse a Breathalyzer in California? What Drivers Should Know
Few moments are as stressful as seeing police lights in your rearview mirror after you’ve had a drink or two. If an officer asks you to blow into a breath device, you may wonder whether you have to, and what happens if you say no.
The answer in California depends on which test you’re being asked to take and when. Some tests are generally optional. Others carry serious consequences if you refuse. Here’s what San Diego drivers should understand before they’re ever in that situation.
Not Every Breath Test Is the Same
California DUI stops can involve two very different kinds of breath tests.
The Roadside Screening Test (PAS)
Before an arrest, an officer may ask you to blow into a small handheld device called a Preliminary Alcohol Screening (PAS) test. For most adult drivers, this roadside test is generally voluntary. The officer is supposed to tell you that.
There are important exceptions. Drivers under 21 and drivers on probation for a prior DUI are generally required to take a PAS test.
The Post-Arrest Chemical Test
Once you’ve been lawfully arrested for DUI, the rules change. Under California’s implied consent law, anyone who drives in the state is considered to have agreed to a chemical test, either breath or blood, after a lawful DUI arrest. Refusing this test can lead to separate penalties, even if you’re never convicted of DUI.
Field sobriety tests, such as walking a line or following a light with your eyes, are a separate issue. You can learn more in our post on whether field sobriety tests are always accurate.
What Happens If You Refuse a Chemical Test After Arrest?
Refusing a required chemical test can create problems in two places: with the DMV and in criminal court.
A Longer License Suspension
The DMV treats a refusal seriously. A refusal can lead to a longer license suspension than a standard first-offense DUI, often a full year for a first refusal and longer if you have prior offenses. Drivers who refuse may also have fewer options for restricted driving privileges during the suspension.
Tougher Penalties in Court
If you’re convicted of DUI, a refusal can be used to increase the penalties. Prosecutors may also argue to a jury that you refused because you believed you were impaired.
Officers May Still Get a Blood Sample
In many situations, officers can seek a warrant for a blood draw after a refusal. So refusing doesn’t always prevent the state from getting evidence. It may simply add penalties on top of the DUI charge.
Should You Refuse the Breathalyzer?
Every case is different, and this article can’t tell you what to do in your specific situation. In general, though, California drivers should understand the difference between the two tests:
- The roadside PAS test is generally optional for adult drivers who are not on DUI probation.
- The post-arrest chemical test is generally required, and refusing it has real consequences.
- Being polite and calm with officers is always in your best interest, whatever you decide.
- You have the right to remain silent about where you’ve been and how much you’ve had to drink.
If you’re unsure whether you’re being asked for a PAS test or a post-arrest chemical test, you can ask the officer to clarify.
What to Do After a DUI Arrest Involving a Refusal
If you’ve been arrested for DUI, especially if a refusal is alleged, time matters.
Request Your DMV Hearing Quickly
In most cases, you have only 10 days from your arrest to request a DMV hearing. If you miss that deadline, your suspension may take effect automatically. Learn more about DMV hearings and license suspension and what happens at a California DMV hearing.
Don’t Assume the Refusal Will Stick
A refusal allegation can sometimes be challenged. Questions may include whether the stop and arrest were lawful, whether the officer properly explained the consequences of refusing, and whether what happened actually counted as a refusal. A medical condition or confusion can play a role too. Our page on common DUI defenses covers some of the issues an attorney may review.
Talk With a DUI Defense Attorney
A refusal case involves two separate tracks, the DMV case and the criminal case, and each has its own rules and deadlines. A San Diego DUI defense lawyer can help you protect your license and build a defense.
Frequently Asked Questions
Can I refuse a breathalyzer in California?
Adult drivers who are not on DUI probation can generally decline the roadside PAS test. After a lawful DUI arrest, however, California’s implied consent law requires a chemical test, and refusing can lead to a longer license suspension and harsher penalties.
What is the penalty for refusing a chemical test in California?
A refusal can bring a longer DMV license suspension, often one year for a first refusal, plus possible additional penalties if you’re convicted of DUI. The exact consequences depend on your record and the facts of your case.
Can a DUI refusal be fought?
Often, yes. An attorney may challenge whether the arrest was lawful, whether you were properly advised of the consequences, and whether a refusal actually occurred.
Talk With the Law Offices of David A. Simon
If you were arrested for DUI in San Diego and the officer says you refused a chemical test, don’t wait. Attorney David A. Simon focuses on DUI defense and DMV hearings and is available 24/7. Call the Law Offices of David A. Simon at 619-393-3355 or contact us online to schedule a case evaluation.
Disclaimer: This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Every DUI case depends on its specific facts, so consult an attorney about your situation.
