Facing a DUI charge for refusing a breathalyzer or blood alcohol test? If so, you should consult with a DUI lawyer. The DUI lawyers at My Rights Law will aggressively defend you and protect your rights. To learn more, reach out to My Rights Law by calling (909) 340-2000 or contacting us through our secure web form.
In California, under Vehicle Code 23613 VC, you generally do not have the right to refuse a DUI breathalyzer or blood test after a police officer lawfully arrests you for a DUI. You do not have the right to refuse these tests because California has the implied consent law[1]. The implied consent law requires all drivers that are lawfully arrested for a DUI to submit to chemical testing to determine blood alcohol concentration (BAC) or the number of drugs in their system.
However, it is essential that you remember that you are not permitted to refuse the breathalyzer or blood test after the police officer arrests you on suspicion of DUI. However, you can refuse to take a breathalyzer or blood test before an arrest, as long as you are 21 years or older and not currently on DUI probation.
For an arrest to be lawful, the police officer who stops you must have probable cause[2] to believe that you have been driving under the influence of alcohol or some other drug. To establish probable cause to make an arrest, the police officer may ask you to take a "preliminary alcohol screening" (PAS test).
You can generally choose between a breathalyzer or a blood test. If neither is available, the police officer may ask you to take a urine test.
The police officer will administer the PAS test with a handheld breathalyzer.
Drivers under the age of 21 are required to take the PAS test.
The penalties for refusing to take a blood, breath, or urine test begin with a one-year suspension of your driver's license. You could lose your driver's license for two years for a second refusal or if the Court previously convicted you for reckless driving or a DUI within the last ten years. The penalty will increase to a three-year suspension of your driver's license if you have more than one reckless driving or DUI conviction within the last ten years. The fine is $125 every time.
If the Court convicts you with a DUI, you can face enhanced penalties for refusing a breathalyzer or blood test. Additionally, you will likely lose your driver's license for some time after refusing a breathalyzer or blood test.
When a police officer suspects that you were driving under the influence, the police officer should allow you to choose between a breathalyzer or a blood test. The police officer can offer a urine test if:
The police officer cannot administer a chemical test to you against your will. Doing so would be a violation of your Fourth Amendment right to be free from unreasonable searches and seizures. However, if the police officer gets a warrant, they can forcefully conduct a chemical test on you.
Until recently, forced blood tests were standard. However, the U.S. Supreme Court ruled there is a strong privacy interest in preventing the police from piercing through a person's skin. Thus, the police should only forcibly draw your blood for a DUI test if the police officer reasonably suspects you are under the influence and cannot rapidly obtain a warrant.[3]
A DUI is considered a felony if:
Related charges: Refusing a Field Sobriety Test, DUI with Drugs
If you are charged with refusing a breathalyzer or blood alcohol test, you should consult with a DUI lawyer for help. The DUI attorneys at My Rights Law have defended people against charges of refusing a breathalyzer or blood sample. Get in touch with My Rights Law by calling (909) 340-2000 or by leaving us a message on our secure web form for a free, confidential consultation.
FOOTNOTES
[1] Implied Consent Statute. Vehicle. Code, § 23612
[2] Terry v. Ohio, 392 U.S. 1 (1968)
[3] Missouri v. McNeely (2013) 133 S.Ct. 1552
[4] CALCRIM No. 2100
This page was written, edited, reviewed, and approved by Bobby Shamuilian.
Attorney Shamuilian is the managing partner and founder of My Rights Law and is widely recognized as a legal authority, frequently appearing as a legal analyst and TV pundit on national news outlets.
He has earned a perfect “10.0 – Top Attorney” rating on AVVO and a “10.0” rating on Justia, and has been named among the “Top 40 Under 40” and the “Top 100 Trial Lawyers” by The National Trial Lawyers.
With his proven expertise and dedication, Mr. Shamuilian is committed to protecting your rights and achieving the best possible outcome for your case.
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