Can you Refuse a Breathalyzer in California?
In California, you may not refuse to take a breathalyzer test. In California, you are required to abide by the state's implied consent law. This law states that you cannot legally refuse to comply with chemical testing if a law enforcement officer has arrested you for driving under the influence of alcohol or drugs.
Does the Police Officer Need a "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.
Once arrested, you are required to comply with either a breath OR blood test upon your arrest. Should you refuse, you will be subject to automatic legal penalties. For a first-time violation, your driver's license will be suspended for a period of one year. The length of the suspension will increase by one year for every subsequent violation, but the fine will always be the same ($125).
However, prior to arrest, upon detention by a police officer under suspicion that you have driven under the influence of alcohol or drugs, you have a right to refuse a "preliminary alcohol screening" test, which is commonly referred to by the term "pas." The exception to this rule is for drivers who are under a grant of probation for DUI already. Drivers on probation for DUI are compelled to provide a breath sample upon police request on pain of a one-year license suspension for refusal.
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. 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 advise a jury that you failed to comply with testing because you were guilty of drunk driving.
Penalties for Refusing a Breathalyzer Test in California
Refusing a breathalyzer test is rarely a good option after an arrest. If you were convicted of DUI after violating California's implied consent law, additional DUI penalties would be imposed including a minimum of 96 hours in jail and up to $1,000 in fines.
Fortunately, there are ways to challenge the validity of BAC results even after you have taken a chemical test and failed.
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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