DUI: What Happens if I Refuse a Breathalyzer Test?

Motorists stopped under suspicion of driving under the influence (DUI) are subject to a number of tests and tools law enforcement may use to assess impairment. This includes general assessments of a suspect’s physical appearance and behavior (i.e. red eyes, slurred speech), field sobriety tests (which you have a right to refuse), and chemical tests of their breath, blood, or urine.

In California, there are laws that apply to all motorists and to those who are stopped for DUI. Chief among them is the law of implied consent. Generally, this law means that every motorist legally licensed to drive by the state has provided their consent to submit to a chemical test upon request from a law enforcement officer. Refusing such a test can result in penalties, including a mandatory suspension of your driver’s license, regardless of the outcome of your DUI case. These penalties can also be enhanced when chemical tests are refused with prior DUI convictions. For example:

  • First DUI – A first DUI can result in a 1-year license suspension, in addition to up to 48 additional hours of imprisonment, and completion of a longer mandatory DUI education program.
  • Second DUI – If you have a prior DUI conviction within 10 years and refuse a chemical test, you are subject to a license suspension of up to 2 years, and up to an additional 4 days in jail
  • Third DUI – Refusing a chemical test with 2 prior DUI convictions in a 10-year time frame can result in a 3-year license revocation and up to 10 additional days of imprisonment.
  • Fourth DUI – In addition to facing felony DUI changes and substantial terms of imprisonment in a state prison, refusing a chemical test with three priors can result in a 3-year license revocation and up to 18 additional days of imprisonment.

Preliminary Alcohol Screening (PAS) Breathalyzer Tests

It is important to note that license suspensions and additional penalties associated with refusing a chemical test apply to tests administered after a suspect has been formally placed under arrest. In many DUI cases, law enforcement officers will ask suspects to perform a breathalyzer test in the field if they suspect alcohol intoxication. These field breathalyzer tests are conducted using preliminary alcohol screening (PAS) breathalyzer devices.

PAS breathalyzers are a form of field sobriety testing used to gather probable cause for an arrest, and as such, they can be lawfully refused without consequence, and a refusal of the pre-arrest breath test cannot be admitted as evidence against you in a DUI case. However, if you are under 21 or on probation for a previous DUI, refusing such a test can factor into your case.

After being placed under arrest, any refusal of a chemical test – including a blood test or a breathalyzer test administered at a local jail or law enforcement station – will subject you to the penalties mentioned above. This is true even if you previously submitted to a PAS breath test in the field.

Charged with DUI? Call Lessem, Newstat & Tooson, LLP!

Just because you refused a chemical test does not mean that any charges or penalties you face will be automatic. You have the right to defend yourself, both in criminal proceedings related to the DUI charge, and administrative hearings with the DMV regarding your driver’s license. At Lessem, Newstat & Tooson, LLP, we draw from decades of combined experience to represent clients charged with all types of DUI offenses during both criminal and administrative proceedings.

Whether you refused a test of not, our legal team is intent on investigating all facts and circumstances surrounding your case to not only ensure your arrest was lawful, but to also challenge any issues we find in the government’s narrative of what took place and the evidence they have. This means structuring a defense that may highlight an officer’s lack of probable cause, inaccuracy of any tests that were taken, or strategies to reduce charges and penalties in order to secure the best possible resolution.

Every case and defense is difference, but time is always of the essence after a criminal charge. If you have been arrested and charged with DUI anywhere in Los Angeles, the San Fernando Valley, or any of the surrounding areas of Southern California, our award-winning criminal defense attorneys are available to immediately help. Call (800) 462-7160 to request a free and confidential consultation.