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DUI Testing Refusal and Implied Consent in California Lawyers

If I am Arrested for DUI in California, am I Required to Take a Chemical Test?

No.  If you are arrested and charged with a DUI, you may choose not to take a breath or blood BAC (blood alcohol content) test.  However, a refusal to do so will have serious consequences due to California's implied consent laws.

What is Implied Consent?

California's implied consent law states that any person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purposes of determining the alcoholic content of his or her blood, if lawfully arrested for a DUI.  Thus, you agree to be subjected to breath or blood testing simply by driving.  It is important to note that implied consent only applies to blood or breath tests requested after a DUI arrest.  You may refuse to take a hand-held breathalyzer test prior to your actual arrest. 

What are the Penalties for Refusing to Take a Breath or Blood Test After Being Arrested for DUI?

If you are lawfully arrested for a DUI and refuse to submit to a BAC test, you will be subjected to additional "refusal enhancement" penalties.  The penalties for refusing to take a BAC test are in addition to the standard penalties for DUI:

  • First DUI Offense: 1 Year Drivers License Suspension and 48 Hours of Jail
  • Second DUI Offense: 2 Year Drivers License Suspension and 96 Hours of Jail
  • Third DUI Offense: 3 Year Drivers License Suspension and 10 Days of Jail

It is important to realize that if you can be convicted of both a DUI and refusing to submit to a chemical test.  Additionally, a failure to complete a chemical test (failing to blow hard enough to register) is treated the same as refusing one.

Do I Need a Lawyer if I Have Been Charged With Refusing to Submit to or Failure to Complete a Chemical Test?

DUI arrests are serious and can have severe consequences.  If you refused a chemical BAC test when arrested, you need to contact a criminal defense attorney who specializes in DUI defense immediately.  Your attorney will be able to help you fight any charges and may be able to help you reduce your penalties.  In some cases, a prosecutor may drop the refusal charges if you agree to plead guilty to the DUI, or other lesser charges.

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