Refusing a breathalyzer in California can be a crime, depending on when it is administered during the arrest and crime investigation process. A breathalyzer gives an estimated amount of alcohol in your system. It helps the police determine whether the alcohol level in your blood is above or below the standard. If you refuse a breathalyzer after a DUI arrest, this is a serious violation that could trigger harsher DUI penalties and result in mandatory suspension of your driver’s license.
It is always advisable to engage a skilled DUI attorney if facing DUI charges for advice, support, and defense during the trial. They will ensure you avoid some of these mistakes that could worsen your legal situation.
California Implied Consent
When the police stop you on suspicion of operating a vehicle while intoxicated, they conduct a series of investigations before arresting you for a DUI. They can start by asking you to roll down your window, to provide your vehicle registration and driver’s license, and sometimes to step out of the vehicle. While asking you to do these things, an officer can ask you other questions, such as if you have been drinking or where you are coming from, to determine whether you are intoxicated. The officer’s interest is not just in the way you perform these simple tasks but also in how you answer the questions. They also check your physical appearance for signs of intoxication.
If the officer’s suspicion escalates and they ask you to step out of the vehicle, they may continue with the questioning as they gauge your body language. They can also ask you to perform a few tests by the roadside. These preliminary tests are generally optional. You can politely decline to take them without getting into legal trouble. However, if you take them and fail, the prosecutor can use your test results as evidence to support your DUI charges in court.
The police also administer chemical tests to determine a driver’s blood-alcohol concentration level. This can happen before or after a DUI arrest. The most common of these is breathalyzer tests, whereby you provide a breath sample into a breathalyzer, which provides an estimated amount of alcohol in your system. If the request to provide a breath sample is made before you are arrested for a DUI, you can politely decline it. However, if the officer has probable cause to arrest you for a DUI, they can arrest and compel you to take a chemical test. In this case, you are legally required to comply with the testing under implied consent.
Implied consent law, under VC 23612, states that every driver, by the act of operating a vehicle, automatically consents to chemical testing, whether breath or blood, if legally arrested for a DUI. This means that law enforcement officers have the right to administer a breathalyzer or take a blood sample (in specific circumstances) to determine your BAC after a DUI arrest. Refusing to comply with this requirement is a violation of this law and can result in serious consequences.
Thus, if you face DUI charges and an officer asks you to submit a breath sample for the breathalyzer, it is in your best interest to comply with the request. Having an attorney present during a DUI investigation may help avoid some of these mistakes that could worsen your legal situation. Your attorney will also ensure that the police follow the right procedures during this investigation and that your rights are protected throughout.
The Consequences of Refusing a Breathalyzer in California
Remember that the tests the police conduct before a DUI arrest are generally optional. Those conducted after a legal arrest are mandatory, and you can face severe consequences if you fail to submit to the testing.
Pre-arrest tests are usually the preliminary tests the police conduct by the roadside to determine whether your physical or mental abilities are impaired by drugs or alcohol. There are several standardized tests that the police use to determine your balance or coordination before a DUI arrest. The most common ones include the following:
- The horizontal gaze nystagmus, whereby an officer moves an object horizontally in front of your eyes to check whether you have an involuntary jerking of the eye. This involuntary jerking increases after alcohol consumption
- Walking and turning tests or divided attention tests, whereby the officer asks you to take a certain number of heel-to-toe steps in a straight line and turn in a particular manner, and then return to the starting point
- The one-leg stand test, in which the officer requires you to raise one leg about 6 inches off the ground and count aloud for about 30 seconds. You are expected to maintain balance while standing in that posture.
Although these are common tests by the police when they make a DUI stop, you can politely decline to take them. This is not a violation of the law since these tests are administered before a DUI arrest. Additionally, the police can conduct a PAS breath test before an arrest. They may ask you to submit a breath sample to determine your BAC before arresting you for a DUI. This test is optional, too, and you can politely decline to take it.
However, there is an exception to this law. Certain individuals could be penalized for refusing to submit to preliminary DUI tests. They include the following:
- Underage drivers, or drivers aged 21 years and younger
- A driver who is on a DUI-related probation
If you are not in any of these categories, you will not get into legal trouble if you politely decline to take a preliminary DUI test. If you take the tests and fail, the results can be used as crucial evidence in your DUI case.
However, post-arrest chemical tests are mandatory. Once you are arrested for a DUI, police officers have the right to test your BAC and use the results as evidence for a DUI conviction. However, this only becomes mandatory if your arrest is legal in the first place. If the police do not have probable cause to arrest you, arresting and charging you with a DUI is unlawful. This means that if you refuse to submit to chemical testing after an unlawful arrest, you will not be penalized.
Here are common consequences for refusing a breathalyzer after a legal arrest in California:
Mandatory Driver’s License Suspension
Refusing to take a breath or blood test after a DUI arrest is not taken lightly by the court or the DMV. It can result in the mandatory suspension of your driver’s license. The period of this suspension mainly depends on your criminal history. This is how the DMV penalizes you for violating implied consent:
- One year of driver’s license suspension if this is your first violation. You do not qualify for a restricted license within that time
- Two years of driver’s license suspension if this is the second violation within ten years
- Three years of driver’s license suspension, this is your third violation within ten years
Enhanced Penalties
If you are convicted of a DUI and it is on record that you refused to submit to chemical testing after arrest, the judge can enhance your criminal penalties. The enhancement heightens your criminal penalties, and the additional sentence must be served consecutively with the sentence for the underlying DUI. For example:
- You could receive an additional 48 hours in jail if you are convicted of a first DUI
- You could receive an additional 96 hours in jail for a second DUI conviction
- You could receive an additional ten days or more to your jail sentence for a third or subsequent DUI
Evidence of Guilt
The prosecutor can use your refusal as evidence to support their case against you during the trial. They can argue that your refusal to take a chemical test proves that you knew that you were already intoxicated. This will increase the possibility of a conviction by strengthening the prosecutor’s case against you.
The Choice of Chemical Tests
If an officer suspects you of driving while intoxicated, and they want to administer a chemical test to determine your BAC, they give you a choice between a breath and a blood test. You can choose one of the two, but you cannot refuse to take the test. Although urine tests are used in California, they are offered in very specific circumstances, including the following:
- If the officer strongly suspects that you are under the influence of a drug and is unable to conduct a blood test
- If the two common choices, that is, breath and blood tests, are unavailable
- If you have a particular medical condition that makes it difficult to test your breath or blood samples
In these and other situations, you cannot choose the type of DUI test to take.
If an officer suspects that you are under the influence of a drug, they could initially give you a choice of a blood or breath test. However, if you opt for a breathalyzer test, you will also be asked to agree to blood testing because a breath test does not show the level of drugs in your system. In some cases, a blood test may show the type of drug in your system. If this does not work, the officer may seek assistance from a drug recognition expert.
Unreliable Breathalyzer Results
Remember that prosecutors use DUI test results to strengthen their case against suspected DUI defendants. However, this does not always mean that the test results are reliable and an accurate representation of how much alcohol or drugs you consumed before or while driving. If an officer takes your breath sample, and they suspect that the breathalyzer results are false, they will ask you to submit a different sample, such as a urine or blood sample.
Some of the reasons why this can happen include the following:
- If the breathalyzer aborts your test every time you submit a sample
- If the test outcomes are different from what the officer was expecting
The truth is, breathalyzers are not always accurate. This is a cause for concern, considering that breathalyzer results can be used as irrefutable evidence to obtain a DUI conviction. Sometimes breathalyzers produce inaccurate results. A skilled DUI attorney who understands these matters can ensure that only accurate results are used against you in court. If they suspect that your results are inaccurate, they can challenge them during the trial and convince the judge to throw them out.
Here are some of the reasons why a breathalyzer can produce false or inaccurate results:
The Machine is Faulty
A breathalyzer, just like any other machine, must be in good condition to produce an accurate estimate of the level of alcohol in your blood. If it is faulty, the results will be unreliable. Breathalyzers must be properly maintained and calibrated as required to ensure they are functioning properly at all times. If the breathalyzer used on you was not well-maintained or properly calibrated, there is a possibility that your test results are inaccurate.
Your Breath Sample is Inadequate
When submitting a breath sample to a breathalyzer, you must generate a substantial amount of air from your lungs. The officer will demonstrate this to ensure that the sample is sufficient to provide accurate results. If you are unable to generate the required volume of air, the results will be inaccurate. This can happen if you are highly intoxicated or not strong enough to get sufficient deep lung air.
The Breathalyzer Catches Alcohol in Your Mouth
Alcohol in your mouth does not always mean that you were driving while intoxicated. A positive BAC can happen even if you have not consumed any alcoholic beverage but have used an alcohol-based product like mouthwash. A breathalyzer can also detect alcohol if you have GERD. These situations could result in a false positive.
Find a Competent DUI Attorney Near Me
If you face DUI charges and refuse a breathalyzer, you could face more severe penalties upon conviction. However, this depends on when the tests are administered. Having a skilled DUI attorney helps you understand when you can politely decline DUI tests and how to fight false test results.
At Jonathan Franklin DUI Attorney, we know how confusing and stressful a DUI arrest can be. We can offer support and defend your rights immediately after you are pulled over by the police for a DUI investigation in Los Angeles. Call us at 323-464-6700 to discuss your case and our services in detail.
