Do I have to consent to a breathalyzer test?

In California, drivers must consent to breathalyzer tests in certain situations.  At other times, drivers have the right to refuse to take a breathalyzer test.  The determination of whether to consent to a breathalyzer test is based on the facts of the specific case.

After a driver is stopped on suspicion of driving under the influence (DUI), he or she may be asked to take a roadside breathalyzer test, also referred to as a preliminary alcohol screening (PAS). You do not have to consent to this pre-arrest test — with two exceptions.  First, if you are currently on DUI probation, you must take the PAS, or face additional consequences.  Second, if you are under the age of 21, you are required to submit to the PAS, or you be cited to failure to take the PAS. For most drivers, however, you do not have to consent to a pre-arrest roadside breathalyzer test.

If you are arrested on suspicion of driving under the influence, the situation changes.  Under California law, when you obtain a driver’s license, you have impliedly consented to taking a chemical breath test if you are arrested for a DUI.  If you refuse to take a chemical test after you are arrested, then you will face additional consequences.

The severity of the penalty for a refusal will be based on the number of previous DUI convictions (if any) that you have had in the past 10 years.  For example, if this is your first DUI and you refuse to take a post-arrest breathalyzer, then you will be sentenced to an extra 48 hours in jail and an additional 6 months of mandatory alcohol education classes.  Your driver’s license will also be suspended for another month.

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