What Happens if You Refuse a Breathalyzer Test in San Jose, California?

Posted on April 22, 2016

You may not be aware of it, but when you obtained your California driver’s license or when you drive on California’s roads and highways, you have given your “implied consent” to submit to a breathalyzer test if you are lawfully arrested for driving under the influence of alcohol.

Notwithstanding your “implied consent,” you can refuse to take a Breathalyzer test in San Jose, California, just be prepared to face significant consequences, including losing your driving privileges as well as greater penalties if you are ultimately convicted of DUI.

California Vehicle Code Section 23612 provides that a California driver has “deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested” for DUI. The arresting officer is required to give the driver the choice of either a blood or breath test.

If you’ve been arrested for DUI in San Jose and have been requested to take a Breathalyzer or other chemical test, the officer has an obligation to tell you the consequences of refusing to submit to the test.

If you fail or refuse to submit to a Breathalyzer test in San Jose, you are subject to the following penalties pursuant to Vehicle Code Sec. 23612: 

• a fine,
• mandatory imprisonment if you are convicted of a violation of Vehicle Code Section 23152 (DUI without injury) or 23153 (DUI with injury),
• the suspension of your driving privileges for a period of one year,
• the revocation of your driving privileges for a period of two years if you have a previous conviction for reckless driving or DUI within the previous 10 years,
• the revocation of your driving privileges for three years if you’ve been convicted two or more times for reckless driving or DUI with the previous 10 years.

(UPDATE 2019: People convicted of DUI with a chemical test refusal enhancement may be able to get a restricted license that allows them to drive without limitation with an ignition interlock device (IID) for six months. A person will be given credit for the period of DMV suspension time served with an IID toward their Court ordered suspension. California Senate Bill 1046 (2018))

You do not have the right to have an attorney present before stating and deciding whether to submit to a Breathalyzer test or during the administration of the test. Additionally, your refusal may be used as evidence against you at trial. The arresting officer has an obligation to advise you of both of these aspects of the law. (Vehicle Code Sec. 23612(a)(4))

Breathalyzer tests are not always accurate, and the results can and often are deemed unreliable and inadmissible in court. If you’ve been charged with DUI in San Jose, please give us a call. Our experienced and aggressive San Jose DUI defense attorneys can help you fight the charges against you; challenging the prosecution at every turn and tirelessly protecting your rights.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.