Imagine you’ve been out with some friends. You had a good time, and you may have had a few drinks along the way. In your mind, you’re fine to drive home, so you say goodbye to your pals, and head off. Before you know it, those red and blue lights are flashing in your rearview mirror.
It’s completely possible that you’re being pulled over for suspicion of driving under the influence. So, what do you do?
Chances are, the officer will engage you in a brief conversation as he or she tries to determine if you’ve been drinking. Should the person who pulled you over believe you’re driving under the influence of drugs or alcohol, you’ll likely be asked to submit to a breath test. In California, an officer must have probable cause prior to arresting you for a DUI, and because of ‘implied consent’ laws, you’re required to submit to chemical testing to facilitate an officer’s determination of your blood alcohol concentration (BAC).
How Does Implied Consent Impact Your Right to Refuse a Breath Test?
By law, an officer in California is required to explain the process taking place when you’re pulled over, including any penalties and consequences you may face if you choose to refuse the breath test. The officer is also obligated to explain that you do not have the right to speak to an attorney before you take a breath test, and if you refuse, that refusal may be used against you in court.
Refusal of a breath test could likely result in the following:
- Loss of your driver’s license
- Jail time if convicted of a DUI
With this said, there are different types of breath tests, and implied consent works differently, depending on the part of the process you’re in when the officer offers you a breath test.
Can You Refuse Pre-Arrest Breath Tests?
Because an officer needs to have probable cause before arresting you, he or she may ask your assistance in gathering evidence. “Preliminary alcohol screening” (PAS) tests are used to establish probable cause. Generally speaking, implied consent doesn’t’ apply to PAS screenings, which are usually administered via hand-held devices (typically known as breathalyzers). These tests are voluntary, and you can refuse them unless you’re under 21 years of age or are currently on DUI probation; if either of these situations occur, you will likely face further penalties if you refuse the pre-arrest breath test.
Can You Refuse a Post-Arrest Breath Test?
If an officer has sufficient probable cause to arrest you without a PAS test, you will likely be arrested. After an arrest, breath tests are no longer voluntary, meaning implied consent applies, and you are expected to submit to the officer’s request to obtain your BAC levels by way of a breath, blood, or urine test. Should you refuse, you may incur harsher penalties than you would have faced, had you submitted to the test.
Penalties for refusing post-arrest tests may include:
- First Refusal: One-year driving suspension plus a $125 fine
- Second Refusal or a DUI Conviction Within the Last Ten Years: Two-year driving suspension plus a $125 fine
- Third Refusal or More than One DUI Conviction Within the Last Ten Years: Three-year driving suspension plus a $125 fine
Refusing a breath test will not necessarily save you from a DUI conviction; in fact, the prosecution may argue that your refusal shows an admission of guilt, and your BAC test results are not required for a court to convict you of a DUI. In the event the prosecution chooses to use your breath test refusal against you, your overall penalties could end up much larger in the grand scheme of things.
Getting pulled over for a DUI is scary, but it’s even scarier to go through the process without a knowledgeable DUI attorney who will fight to make the most of your situation. If you’re facing DUI charges, consider hiring a lawyer who understands California’s DUI laws.
Mark Sollitt and his team of legal professionals specialize in DUI defense. You can call the office anytime at 916-443-6593 or send a note online.