If you haven’t been arrested, then you generally do not have to consent to a breathalyzer.
When it comes to driving under the influence (DUI), there are a lot of misconceptions and flat-out falsehoods. You may hear from a friend that sucking a penny will lower your blood alcohol concentration (BAC) (not true!), or that you don’t have to go through a DUI checkpoint (true — if you do so in accordance with the law). The law on DUIs in California is nuanced, however, so it makes sense to get your advice from a DUI defense attorney in Riverside, CA.
Take breathalyzers, for example. Most people are familiar with these devices, which are used as a way to detect the amount of alcohol in your lungs (through a deep breath); this reading is then converted into a BAC measurement. A breathalyzer may be administered twice in the DUI process. Whether or not you have to consent to this type of test depends on a number of factors.
The first time that a breathalyzer test may be given is when you are pulled over by the police. This is known as a preliminary alcohol screening, or a PAS. Law enforcement uses a PAS test to gather evidence to determine if there is probable cause to arrest you. In other words, at the point at which the PAS is administered, you are not under arrest — and the police may not even have enough evidence to arrest you.
According to a DUI defense attorney in Riverside, CA, you do NOT have to consent to a PAS test, unless you fall into one of two categories. If you are either (1) on DUI probation or (2) under the age of 21, you must consent to a pre-arrest breathalyzer test (PAS). Otherwise, you are free to refuse this test, and you generally should do so. There is no reason to give the police additional evidence that you may be driving under the influence of alcohol, particularly if there may not even be enough evidence to arrest you at that point.
The second time that a breathalyzer test may be administered is after you are arrested on suspicion of driving under the influence. This is a post-arrest chemical breath test (you will also have the option of taking a blood test, or in some cases, a urine test). You don’t have to consent to taking this test, however, refusing to take a post-arrest chemical breath test can lead to significant consequences.
If you refuse to take this test, you will typically still be charged with a DUI. You will also be charged with a refusal, which will add mandatory jail time to any sentence that you may receive for the underlying DUI. A refusal will also result in an automatic one year suspension of your driver’s license.
While you never have to consent to a breathalyzer test under California law, if you refuse to take a post-arrest breath test, you will face additional penalties. As long as you are not on DUI probation and are 21 or older, you can refuse to take a PAS and not face any consequences for doing so.
If you have been charged with a DUI, the Chambers Law Firm can help. With significant experience in handling all types of DUI cases, we will aggressively defend your rights. Contact us today at 714-760-4088 or dchambers@clfca.com to schedule a free initial consultation with a DUI defense attorney in Riverside, CA.
