If you drive in California, you are required to submit to a chemical breath or blood test after a DUI arrest.
Like many states, California has a law on the books that requires drivers to consent to submit to a breathalyzer test if they are arrested for driving under the influence of alcohol. Known as the “implied consent” law, this means that if you refuse to submit to a breath test after being lawfully arrested, you could find yourself in even more legal trouble.
As skilled DUI lawyers in Irvine, CA, we are familiar with the many consequences that come from refusing to take a breath test after being arrested for a DUI. As a general rule, it is not advisable to refuse this test, as it can be used against you at trial and result in penalties separate from the DUI itself.
Post-Arrest Breath Tests
Once you are lawfully arrested in California for driving under the influence, the police will give you a choice between a chemical breath or blood test (in some cases, a urine test may be an option). The California Vehicle Code, section 23612, states that California drivers are deemed to have given consent to such a test if they are arrested. If you refuse to consent to a breathalyzer test, you could face additional consequences on top of those that you may receive for a DUI conviction, including losing your driving privileges.
The key here is that the breath test occurs after a legal arrest. California drivers are not required to submit to a pre-arrest breathalyzer screening (known as a PAS) unless they are under the age of 21 or are currently on DUI probation. If you do not fall into either of those categories, then you have the right to refuse to take a roadside breathalyzer test.
However, if you refuse to submit to a breath test after a DUI arrest in California, then you may face other penalties on top of the fines, potential prison time, mandatory DUI school, the revocation of your driving privileges, and probation that are typical punishments given to DUI offenders. When giving you the option of taking either the breath or blood test, the police officer must tell you the consequences of refusing to submit to the test, including that your refusal can be used against you at your DUI trial. Importantly, you do not have the right to consult with an attorney before deciding whether or not to take a breath test.
In contrast to breath tests, you are not said to have consented to blood tests simply by driving on California roads or having a California driver’s license. The United States Supreme Court recently decided that police officers must obtain a warrant to take a blood sample for testing after a DUI. While this case has not yet been applied in California, it is important to know that if you ask for a blood test and then do not consent to having one taken, the police may have to get a warrant to take the sample. The police do not require a warrant to take a breath sample. If you do request a blood test, remember to ask for the sample to be preserved so that you can have it tested later.
In some cases, breathalyzer test results can be challenged in court based on a number of legal and factual bases. If you have been charged with a DUI, you will need an experienced DUI lawyer. In Irvine, California, contact the Chambers Law Firm at 714-760-4088 or dchambers@clfca.com to schedule a free initial consultation about your case. We will work hard to ensure that your legal rights and your freedom are both protected!
