In most cases, you do not have to take a roadside breathalyzer — and it may even hurt your chances of defeating a DUI charge if you do.
If asked to imagine what happens during a DUI stop, most people would probably say that the driver is asked to take a breathalyzer or do field sobriety tests, like touching their fingers to their nose. It is true that California police will often ask drivers suspected of driving under the influence to take a breathalyzer test at the side of the road— otherwise known as a pre-arrest preliminary alcohol screening (PAS). But what many people don’t know that except in certain limited situations, you are not required to take a pre-arrest breathalyzer test.
What A PAS Shows
There are two main types of PAS tests. A breathalyzer test is a method of determining your blood alcohol content, or BAC. A certain amount of alcohol is excreted into your lungs, and can be detected in your breath. A breathalyzer test converts breath alcohol readings into an equivalent blood alcohol content. For anyone age 21 or older driving a noncommercial vehicle, the legal limit for driving in California is .08 percent. A saliva swab may determine the presence of intoxicants in your system, such as cocaine, marijuana, meth, ecstasy and even alcohol. Breathalyzer tests are used throughout California, while salvia swabs are in use only in certain counties.
When You Must Submit to a PAS
There are two situations where you are required to submit to a roadside alcohol test, or PAS. The first is if you are under 21 years old and suspected of driving under the influence, you must take the test in accordance with California’s zero tolerance law. The second is if you are currently on probation for a California DUI. Otherwise — if you are age 21 or older and are not on DUI probation — you do not have to take a pre-arrest breathalyzer or salvia swab test.
The police often present the roadside test as if it is not optional. But under the law, the police are actually required to tell you that submitting to a PAS is not mandatory, unless you fall into one of the two above-described categories. The results of this test can be used against you in a DUI case. For this reason, most Orange County DUI attorneys would recommend against submitting to a pre-arrest preliminary alcohol screening unless you are required to do so by law.
If you are under the age of 21 and refuse to submit to a PAS, you will face a suspension of your driver’s license for at least one year. If you are currently on DUI probation and refuse to take a PAS, then you will lose your license for one to three years. Importantly, both minors and people on DUI probation are forbidden from driving with any measurable alcohol in their system. If even a small level of alcohol is found through a PAS or post-arrest chemical test, you will be charged with a DUI.
Post-Arrest Chemical Testing
In contrast to pre-arrest alcohol screenings, you are required to submit to a chemical test after you are arrested for driving under the influence. If you do not take a breath, blood or urine test after arrest, you could be facing the loss of your license for at least a year and enhanced DUI penalties.
The law regarding DUIs can be complicated, and requires a thorough understanding of California statutes, case law and the science behind measuring a person’s blood alcohol content. If you’ve been stopped on suspicion of driving under the influence, know that unless you’re under 21 or on DUI probation, you are within your rights to refuse to submit to a pre-arrest alcohol screening. If you are arrested for a DUI, you will be required to submit to a chemical test — and you should also contact a skilled Orange County DUI attorney as soon as possible. The Chambers Law Firm will vigorously defend you against DUI charges. Contact our office today at 714-760-4088 or dchambers@clfca.com to schedule a free initial consultation.
