In California, a police officer can pull you over for questioning if the officer has probable cause to suspect you are driving under the influence. The police officer will then ask you to perform a field sobriety test and submit to a breathalyzer test. A breathalyzer is a device that measures your level of blood alcohol content, or bac. To take a breathalyzer test, the officer will ask you to blow into a portable breath analyzer. In California, the legal limit is .08. Therefore, an officer can arrest you if your bac reading is .09 or higher.
Refusing to Submit to a Breathalyzer Test Pre-Arrest
You have the right to refuse a pre-arrest breathalyzer test. There are many reasons to refuse to take the breathalyzer test. For example, you may feel that you are not intoxicated and the test will result in a false positive. However, California has an implied consent law that requires you to submit to blood or breathalyzer testing once you are in custody. The reasoning of the law focuses on the theory that driving is a privilege and by applying for and obtaining a drivers license, you are consenting to further testing once arrested. Until you are under arrest and in police custody, you can refuse to take the breathalyzer test.
Legal Result of Refusing a Breathalyzer Test After You Have Been Arrested
Once you are under arrest, you may still refuse to submit to a breathalyzer test, but you will face harsh penalties because of the implied consent law discussed above. In California, the arresting officer has a duty to inform you about your obligation to take the test and give you the option to take a blood, or urine test instead of a breathalyzer test. Additionally, the officer should warn you of possible consequences of refusing the test. For example, if it is your first DUI offense, you may face 48 hours of jail time and suspension of your driver license for one year for refusing to submit to a breathalyzer test.
If it is your second DUI offense, expect to face 96 hours of jail and a suspension of your driver license for two years for refusing to submit to a post-arrest chemical test. At the time of the arrest, the officer will immediately seize your license and notify the California Department of Motor Vehicles, or DMV, of your arrest. Refusing to take a breathalyzer test may also affect the jury’s opinion about you if your case goes to trial.
If you have been charged with a DUI, speak with an attorney about your legal rights and options.
