Should You Take or Refuse a Breathalyzer Test?

In the State of California you do have the right to refuse a pre-arrest breathalyzer test.  The PAS (Preliminary Alcohol Screening) breathalyzer is a voluntary test for persons who are over the age of 21 and are not on probation for a prior DUI; and this goes for field sobriety tests, as well.  The PAS breathalyzer test is different from a chemical blood alcohol test that may be performed at a hospital or police station which, according to California Vehicle Code section 23612 you have already given "implied consent" simply by operating a motor vehicle.

What Happens if You Refuse?

If you refuse a breathalyzer test you will probably be arrested and there are no additional charges for refusing these tests.  However, if you refuse a BAC Test at a hospital or police station you could face a number of legal ramifications.

In a typical drunk driving case evidence of intoxication includes:

1. Arresting officer's observations
2. Statements made by driver
3. Field Sobriety Tests
4. Portable Breath Test
5. BAC Results - Breathalyzer Test Results over .08

What if You Take the Test?

The first four listed above are not incriminating to the driver/defendant.  As long as you didn't make any incriminating statements to the officer (i.e. "I drank 12 beers"), the State's case against you is the officer testifying that you look drunk.  If you include number 5 and you took the Breathalyzer Test it makes the DUI case much more difficult to defend, and even more difficult to defend when some machine reads out that you are "intoxicated" i.e. at or over a .08 BAC level.

Implied Refusal

In California DUI refusal means can also mean "implied refusal."  Examples of an implied DUI refusal include failure to blow hard enough into the breathalyzer, or if a person is unable to give consent due to unconsciousness.  If the PAS machine is broken or malfunctioning you can sometimes still be charged with implied refusal.  If you refuse the initial PAS, but give no objection to the drawing of blood in a hospital or police station, you cannot be charged with DUI refusal.

Always Talk to a DUI Lawyer

An experienced and qualified DUI attorney can help you fight a case involving DUI refusal in California.  With an experienced legal team on your side you may be able to plead guilty to lesser charges and in some cases may even have the charges dropped completely.  There are a lot of factors to determine whether or not you are guilty of DUI in a court of law and with our attorneys legal expertise working on your side you can assured that you are given a fair trial in the State of California.  Contact our San Diego DUI attorneys today for a free legal consultation.