A person can always choose not to take a breathalyzer or blood test after being arrested and charged with driving under the influence (DUI). After all, a breath or blood test is aimed at revealing blood alcohol content (BAC) to serve as evidence against the person.

However, a breathalyzer test is required under California’s implied consent laws, and refusal to submit to one leads to 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 breath for the purposes of determining their blood alcohol content. So, anyone who drives a motor vehicle in California has agreed to be subjected to breathalyzer testing if they are arrested for DUI. Their agreement is implied from the fact that they are driving a motor vehicle. It is important to note that implied consent only applies to breath tests and only after law enforcement has effected a valid arrest on suspicion of DUI. This means that a preliminary, roadside test may be refused.

At one time, California’s implied consent law applied to DUI blood tests as well as to breath tests. But the United States Supreme Court has said that defendants may not be subject to penalties for refusing to take blood tests. So, the police now have to obtain a warrant in order to administer a blood test, unless the circumstances are present to justify a search and seizure without a warrant.

So, after law enforcement has pulled a driver over, but before the person is arrested, they may be asked to take a hand-held preliminary alcohol screening (PAS) breath test. Refusing to take a PAS breath test is not penalized unless the person is under 21 or on probation for a prior DUI conviction.

Reportedly the police usually do not present the PAS test as optional. But the PAS test is a field sobriety test (FST), so it is just like other FSTs, such as walking in a straight line, or touching one’s nose with one’s finger. The purpose is to help the officer decide whether they have probable cause to arrest the person and charge them with DUI.

A suspect’s refusal to take a PAS test may not be used at their DUI trial as evidence of their guilt.

If a person does agree to a PAS test, however, the results of the test can be used as evidence of their guilt. So, experienced lawyers recommend refusing to take a preliminary breath test unless a person is under 21 or on DUI probation.

When alcohol impairment is suspected, a suspect must generally be given the choice of a California DUI breath test or a California DUI blood test. A urine test for blood alcohol content is offered only if:

  • Drug use is suspected and the driver is unable to complete a blood test;
  • The other tests are not available; or
  • The suspect suffers from certain medical conditions.

In these and certain other scenarios, a person may not be able to choose which DUI test they take.

If the officer suspects a person of driving under the influence of drugs (DUID), the officer may first give the suspect a choice of a DUI breath or blood test. However, even if the person chooses a breath test, they may also be required to submit to a DUI blood test if the officer has a clear indication that it would show the presence of drugs.

The arresting officer might decide that a DUI blood test is required. Or the office has the option of involving a drug recognition expert. A “clear indication” that a DUI blood test would establish drug use so as to justify a blood test can include any of the following:

  • Statements by the suspect such as, “I only smoked one joint;”
  • Objective symptoms of drug intoxication, such as,
    • Dilated or constricted pupils;
    • Elevated pulse or heart rate;
    • Blank stare;
    • A PAS test that comes back negative for alcohol.
  • Physical evidence of drug use:
    • There is an odor of marijuana in the suspect’s car;
    • Prescription bottles are found in a suspect’s purse;
    • There is white powder around the suspect’s nostrils.
    • Drug paraphernalia is found in the suspect’s car.

Keep in mind that if the police get a warrant, or if there are “exigent circumstances” that justify the police search and seizure without a warrant, the police can forcibly draw a suspect’s blood to perform a DUI blood test. However, reportedly, they would forcibly draw a suspect’s blood for a DUI chemical test only when an arrestee is suspected of felony DUI and a warrant cannot be obtained quickly.

Driving under the influence becomes a felony when:

  • The suspect causes an accident that results in injury or death to another;
  • The suspect has 3 or more DUI or “wet reckless” convictions within the prior 10 years;
  • The suspect has at least one prior felony DUI conviction.

What Is the Consequence of Refusing to Take a Breath Test?

If an arrestee refuses a chemical test after being lawfully arrested for a DUI, the arrestee faces the possibility of additional “refusal enhancement” penalties, and the penalties can be imposed even if the arrestee is not ultimately convicted of DUI. Enhancement penalties for refusing to take a chemical test are in addition to the standard penalties for DUI, so the mandatory jail time is in addition to the standard DUI punishment of time in jail.

The enhancement penalties are as follows:

  • First DUI Offense: Driver’s license suspension for 1 year and a mandatory 48 extra hours in jail and an extra six months of mandatory DUI school;
  • Second DUI Offense: Driver’s license suspension for 2 years and a mandatory 96 hours in jail;
  • Third or Greater DUI Offense: Driver’s license suspension for 3 years and a mandatory 18 days in jail.

The mandatory jail time has to be served even if the person is not convicted of the DUI charge.
And it would be added to any other term of jail time imposed for the DUI conviction. Also, the enhanced penalty applies even if the person already submitted to a PAS test before being arrested.

Additionally, a failure to complete a chemical test by failing to fully comply with the testing procedure, by, for example, not blowing hard enough to register when given a breathalyzer test, is treated the same as a refusal.

Are There Any Defenses to Refusal to Test?

Common DUI defenses that are available to fight the penalties for refusing to take a DUI breath or blood test include the following:

  • The DUI arrest was unlawful, because the police did not have probable cause to arrest;
  • The officer did not clearly advise a suspect of the consequences of a chemical test refusal, as is required;
  • A person’s refusal resulted from an injury that was not caused or contributed to by alcohol or drugs.

A person does not have the legal right to refuse a post-arrest DUI chemical breath test on the grounds that they think they have been wrongfully stopped or arrested. However, if a court later finds that the person’s traffic stop or arrest was in fact unlawful, the charge of refusing the post-arrest DUI chemical test would probably be dismissed. This is true even if the test indicates that the person was intoxicated.

Do I Need a Lawyer?

DUI arrests are serious and can lead to severe consequences. As can be seen from the above information, the issue of whether a person can or cannot refuse a chemical test may become quite technical and complicated.

If you refused a chemical BAC test after being arrested, you need to consult a California DUI/DWI lawyer immediately. Your lawyer will be able to help you fight any charges, including enhancement penalties, and may be able to help you reduce or escape your punishment.