Can you Refuse a Breathalyzer in California?
In California, there are two types of “breath machines” those investigated for DUI may encounter. The first is a “preliminary alcohol screening test” known as a “PAS.” Any driver under 21 or on probation for DUI may not refuse a PAS when lawfully detained by a peace officer. All other drivers retain the right to refuse a “PAS” test and the police are required to advise of this fact). However, once arrested, drivers are under a duty to select a breath test or blood test. Refusal to provide either sample will result in automatic legal penalties and loss of driving privileges.
Does The Police Officer Need "Probable Cause"?
In order to arrest a citizen for driving under the influence of alcohol or drugs, police must possess "probable cause" to believe you have driven a motor vehicle under the influence of alcohol or drugs. Arrests without probable cause violate the 4th Amendment to the United States Constitution and can lead to suppression of evidence gained from an unlawful arrest.
Arrests For DUI After A Refusal
It is also important to understand that you could still be arrested for DUI even if you refuse to take a breath or blood test and still be compelled to provide a sample by court order. After a refusal, police have the ability to apply for a search warrant from a judge based on probable cause to believe you have driven under the influence of alcohol or drugs to procure a blood sample. Once you have been provided a choice of tests and continue to refuse to select one, your license will be suspended pursuant to the law.
If the police do not procure a search warrant for a blood draw after refusal, there will not be physical evidence of your blood-alcohol concentration. However, the prosecution could argue to a jury that you failed to comply with mandatory testing because you were guilty of drunk driving. Refusal after lawful arrest is rarely a wise decision given the ease with which police can gain search warrants for blood draws.
You are innocent until proven guilty, so there is no reason why you should wait any longer to retain the professional legal assistance that you will need to successfully fight a conviction.
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