Technically, no. After being arrested and charged with a DUI, one can choose not to take a breath or blood test aimed at revealing blood alcohol content (BAC). However, a chemical test is required under California's implied consent laws, and refusal to submit to one will have serious consequences.
What Is Implied Consent?
California's implied consent law deems any person who drives a motor vehicle to have given consent to chemical testing of their blood or breath for the purposes of determining the alcoholic content of their blood. Thus, anyone who is driving has agreed to be subjected to chemical testing. It is important to note that implied consent only applies to blood or breath tests after a valid arrest on suspicion of DUI, meaning preliminary, roadside tests may be refused.
What Are the Penalties for Refusing to Take a Breath or Blood Test?
If a chemical test is refused after being lawfully arrested for a DUI, the defendant will be subjected to additional "refusal enhancement" penalties. Enhancement penalties for refusing to take a chemical test are in addition to the standard penalties for DUI, and are as follows:
- First DUI Offense: Drivers license suspension for 1 year and 48 Hours of Jail
- Second DUI Offense: Drivers license suspension for 2 years and 96 Hours of Jail
- Third DUI Offense: Drivers license suspension for 3 years and 10 Days of Jail
Additionally, a failure to complete a chemical test, perhaps by failing to blow hard enough to register, is treated the same as a refusal.
Do I Need a Lawyer?
DUI arrests are serious and have severe consequences. If you refused a chemical BAC test when arrested, you need to contact a criminal defense attorney immediately. A California lawyer will be able to help you fight any charges, including enhancement penalties, and may be able to help you reduce your penalties.