Refuse Breathalyzer California – What happens if I do?

If you refuse to submit to a DUI breathalyzer test or a blood test after being lawfully arrested for DUI in California, you will face penalties for a chemical test refusal.

The major consequences of a chemical test refusal are:

• increased penalties in addition to the standard California DUI penalties, and
• a mandatory driver’s license suspension that will occur regardless of the outcome in your DUI case.

This is because of California’s “implied consent” law. Under this law, you have no right to refuse a DUI breath test once you are lawfully arrested for DUI.

Traditionally, California’s “implied consent law” applied to DUI blood tests as well as to breath tests. But the Supreme Court of the United States has suggested that defendants may not be penalized for refusing to take blood tests in cases where the police have not obtained a warrant.

The following chart clarifies the additional penalties that will accompany a DUI conviction if you refuse to take a DUI breath test.

But simply being charged with a chemical test refusal does not necessarily mean that it – or the DUI itself – will be sustained in court.

Common DUI defenses that you may be able to use to fight the penalties for refusing to take a DUI breath or blood test include:

• Your arrest was unlawful;
• The officer didn’t clearly advise you of the consequences of a chemical test refusal; and
• Your refusal resulted from an injury (that was not caused or contributed to by alcohol or drugs).

Our attorneys include former cops and prosecutors who now use what we have learned to help people accused of DUI chemical test refusals.

To help you better understand the nuances of the law, our California DUI lawyers discuss the following, below:

• 1. What is California’s “Implied Consent” DUI Law?
• 2. Do I Have to Take a Chemical Test under California DUI Law?
  • 2.1. Pre-arrest PAS breath tests
  • 2.2. Chemical test refusals after a lawful arrest
• 3. Can I Choose Which DUI Chemical Test I Take?
  • 3.1. What if the officer suspects I am under the influence of drugs?
  • 3.2. What is my preferred DUI chemical test is not available?
  • 3.3. What if my DUI breath test results are not reliable?
  • 3.4. What should I do if I am told to take a different DUI chemical test than the one I requested?
  • 3.5. What if I have a medical condition?
  • 3.6. What if I am unconscious or severely injured?
  • 3.7. What if I am unable to complete a DUI chemical test after I start it?
• 4. What Qualifies as a “Refusal” to Take a California DUI Test?
• 5. Can I Be Forced to Submit to a Chemical DUI Test Against My Will?
• 6. What are the Penalties for Refusing to Submit to a DUI Chemical Test?
  • 6.1. What is the impact of chemical test refusal on DUI criminal penalties?
    • 6.1.1. Could refusing a DUI breath or blood test help me in my DUI criminal case?
  • 6.2. What happens to my driver’s license if I refuse to take a DUI breath or blood test?
    • 6.2.1. What happens to my driver’s license if I refuse a DUI chemical test but my DUI charges are dismissed?
    • 6.2.2. What happens to my driver’s license if I plea bargain to a “wet reckless” charge?
• 7. How Can I Fight a California DUI Test Refusal Charge?

If, after reading this article, you have further questions, we invite you to contact us at Shouse Law Group.

1. What is California’s “Implied Consent” DUI Law?

By driving in California, you are presumed to have consented to chemical testing for blood alcohol levels (“BAC”) and/or drugs if you are lawfully arrested for DUI.¹ This is known as California’s “implied consent” law.

2. Do I Have to Take a Chemical Test under California DUI Law?

You may not refuse a post-arrest chemical test without serious legal consequences.

However, a pre-arrest breath test is different.

Let’s take a brief look at each of these scenarios separately.

2.1. Pre-arrest PAS breath tests

After you are pulled over – but before you are arrested – you may be asked to take a hand-held preliminary alcohol screening (PAS) breath test.²

There is no penalty for refusing to take a PAS breath test unless you are under 21 or on probation for a prior DUI conviction.³

Unfortunately, the police will rarely present it to you as a choice. But the PAS test is merely a field sobriety test (FST). Like other FSTs – such as walking a straight line, or bringing your finger to your nose – it is just a tool to help the cop decide whether to arrest you.

As long as you are at least 21 and not on DUI probation, refusal to take a PAS test may not be admitted at trial as evidence of guilt.⁴

If you do agree to a PAS test, however, the results of the test can be used to help convict you of a DUI.⁵ Thus we do not recommend agreeing to a preliminary breath test unless you are under 21 or on DUI probation.

Note that in some counties – including Ventura and Orange County – the police use the Evidential Portable Alcohol System (“EPAS”) to conduct post-arrest breath tests. This device is based on the same Draeger Alcotest device used by some police departments for preliminary screenings. However, the EPAS can be hooked up to a printer by hardline or blue tooth.

If you are asked to blow into a handheld device after you have been placed under arrest, we advise requesting a DUI blood test instead.

2.2. Chemical test refusals after a lawful arrest

After you have actually been placed under arrest, you may not refuse a DUI breath test without consequences, under California’s “implied consent” law. This applies even if you already submitted to a preliminary alcohol screening (PAS) test.⁶

This rule traditionally applied to both breath and blood tests in California. But in 2016, the Supreme Court of the United States issued a decision called Birchfield v. North Dakota.  Birchfield held that it is unconstitutional for a state to make it a crime to refuse a blood test without a lawful warrant.

The Birchfield case dealt with states that make it a separate crime to refuse a DUI blood test after arrest. California, in contrast, just imposes additional penalties on DUI defendants for chemical test refusals. So it remains for courts to decide if this is also unconstitutional–and thus if California’s “implied consent” law cannot be applied to blood tests.

You do not have the legal right to refuse a post-arrest DUI chemical test on the basis that you think you have been wrongfully arrested.⁷ But if the court later finds that your traffic stop or arrest were in fact unlawful, the charge will be dismissed…even if the test indicates that you were intoxicated.⁸

3. Can I Choose Which DUI Chemical Test I Take?

When alcohol-based impairment is suspected, you must generally be given the choice of a California DUI breath test or a California DUI blood test.⁹ A DUI urine test is only offered if:

• drug use is suspected and you are unable to complete a blood test;
• one or both of the other tests is not available; or
• you suffer from certain medical conditions.¹⁰

In these and certain other scenarios, you may not be able to choose which DUI test you take.

Let’s take a look at each of these situations one by one.

3.1. What if the officer suspects I am under the influence of drugs?

If the officer suspects you of driving under the influence of drugs (DUID), you may initially be given a choice of a DUI breath or blood test.¹¹ However, even if you choose a breath test, you may also be required to submit to a DUI blood test if the officer has a clear indication that it would show the presence of drugs.¹²

The arresting officer might make the determination as to whether a DUI blood test is required. Or the police could bring in a drug recognition expert (DRE).

A “clear indication” that a DUI blood test would establish drug use can include:

• Your statements:
  • “I only had one joint.”
  • “I snorted a little coke, but that was an hour ago.”
  • “I did a little meth, but not enough to get me high.”

• Objective symptoms of drug intoxication:
  • dilated or constricted pupils.
  • elevated pulse / heart rate.
  • blank stare.
  • A PAS test that comes back negative for alcohol.

• Physical evidence of drug use:
  • the odor of marijuana in your car.
  • prescription bottles in your purse.
  • white powder around your nostrils.
  • drug paraphernalia (California Health and Safety Code 11364) in your car.

3.2. What if my preferred DUI chemical test is not available?

In rare instances, a DUI blood or a breath test may not be available. For example, you need medical treatment and are taken to a hospital where there is no DUI breath testing device. In such a case, you must be given your choice of whichever tests are available at the facility.¹³

3.3. What if my DUI breath test results are not reliable?

If the officer believes your DUI breath test results are unreliable, you may be required to submit to a DUI blood or urine test.

Usually this will be either because:

• the breath testing machine aborts your DUI chemical test, or
• the results are lower than what the officer expected.

Reasons why this could happen include:

• The DUI breath machine isn’t working properly.

If there is a problem with the equipment, the officer will usually try again, or will find another machine. But if the device truly isn’t working and there is not another machine available, you may be required to submit to an alternate DUI chemical test.

• You are unable to generate a sufficient volume of air.

Breath machines are calibrated to base readings for DUI chemical tests on deep lung air, which is the most reliable indicator of BAC.¹⁴ To get enough deep lung air to report a valid result, a minimum volume of air is required.

Some people with lower lung capacity are physically unable to provide this sample when they are subject to a DUI chemical test.¹⁵ If you have reason to believe you are physically unable to blow enough air into the device, you should notify the person testing you. Otherwise, he or she may believe you are deliberately trying to avoid blowing hard enough to register a result.¹⁶

• The breath machine detects alcohol in the mouth.

Breath testing devices for DUI tests contain software that is programmed to abort a test if the machine detects “residual mouth alcohol.”¹⁷

Alcohol generally dissipates from the mouth in 15-20 minutes. This is why Title 17 of the California Code of Regulations requires a 15-minute observation period before a DUI breath test can be administered.¹⁸

If the machine aborts the DUI breath test because it detects mouth alcohol, the officer will usually wait 15 minutes and try the test again. If a valid reading can still not be obtained, you may need to take an alternative chemical test for DUI.

• The officer is not properly trained in the chemical testing procedure.

California DUI testing regulations require that the people administering DUI blood and breath tests be properly trained.¹⁹ But that doesn’t mean this is always observed.

If that happens, and there is no one else there who can administer the DUI chemical test, you may be asked to submit to an alternative one. Your attorney can challenge the DUI chemical test results later, on the grounds that California procedures were not followed.

• The officer is mistaken.

Sometimes we forget that cops are people, too. The cop may genuinely believe that you are driving impaired, even if you are not. He or she may be hoping for a higher result.

Or the person administering the DUI chemical test may be tired. She may not realize she has forgotten to do part of the procedure.

Regardless of the reason, if law enforcement tells you that you must repeat a DUI chemical test or take a different one, your failure to do so may be deemed a chemical test refusal.

And again…if the testing procedure was flawed, we can challenge the results later. It is harder to challenge a DUI chemical test refusal.

3.4. What should I do if I am told to take a different DUI chemical test than the one I requested?

Refusing to follow the officer’s instructions in any way will constitute a chemical test refusal.

Remember, under California’s implied consent law, you have agreed to DUI chemical testing. You can request a different test if the officer neglected to offer you a choice. And if procedures weren’t strictly followed, the results can be challenged later.

But once you are directed to take a specific DUI chemical test, there are very few reasons why you can legally refuse it.

3.5. What if I have a medical condition?

Certain medical conditions may excuse – or prevent you – from taking a particular DUI chemical test. They will not excuse you from the requirement of a DUI blood or breath test altogether.

You may refuse a blood test if you have:

• a blood clotting disorder;²⁰ or
• a heart disorder for which you are taking anticoagulants.²¹

Additionally, certain conditions may result in a falsely elevated BAC level on a DUI breath test. For instance:

• GERD, acid reflux or chronic heartburn may produce falsely high BAC breath test results, and
• Atkins-style low-carbohydrate / high-protein diets can “trick” DUI breath test devices.²²

If the officer asks you about your medical condition or diet, failure to respond truthfully could be construed as a willful refusal to cooperate (and hence a chemical test refusal under California DUI law).²³

3.6. What if I am unconscious or severely injured?

You are not legally excused from a DUI chemical test if you are injured or unconscious, or for that matter, dead.²⁴

Your refusal to take a chemical test, however, may be excused if an injury – such as head trauma – prevented you from giving your meaningful consent.²⁵ But if you were unable to give meaningful consent as a result of your consumption of alcohol or drugs – even prescription ones – your DUI chemical test refusal will not be excused.²⁶

3.7. What if I am unable to complete a DUI chemical test after I start it?

If you are unable to complete a test for reasons beyond your control, you must be allowed to take a different test.

Examples:

• you are unable to generate a sufficient volume of air for a breath test; or
• you are unable to produce enough urine for a urinalysis.²⁷

However, a willful failure to complete a California DUI chemical test will constitute a chemical refusal.²⁸ And if your case goes to trial, the judge will instruct the jury that they may (though they are not required to) infer that you refused the test because you knew you were guilty of DUI.²⁹

4. What Qualifies as a “Refusal” to Take a California DUI Test?

Although the concept of “refusing” a DUI chemical test may seem straightforward, it really isn’t. There are a variety of situations that may unknowingly be construed as a refusal.

In addition to those set forth above, here are a few you should be aware of:

• You are only required to be given one chance to submit to a test.

If you refuse to take a DUI chemical test initially, you do not have the right to change your mind. The officer has no legal obligation to give you a second chance.³⁰

• If you do not choose a DUI chemical test, it will be considered a refusal.

You probably know that “you have the right to remain silent” if you are arrested.³¹ But this “Miranda” warning means only that you have the right not to incriminate yourself. It does not mean you do not have to choose which chemical test you will take after a DUI arrest.³²

If you are offered a choice of tests and you do not respond, your silence may be considered a DUI chemical test refusal.³³

• You do not have the right to consult with an attorney before a DUI chemical test.

Normally you have the right to speak to an attorney following an arrest. However, this right does not apply to chemical tests following a DUI arrest.³⁴

• You do not have the right to have your own physician present during the test.

You are not entitled to have your own physician conduct or observe the DUI chemical test.³⁵ The test will be conducted by trained law enforcement personnel or an outside laboratory in accordance with Title 17 CCR regulations.

5. Can I Be Forced to Submit to a Chemical Test Against My Will?

In most cases, you cannot be forced to submit to a DUI chemical test without a warrant.

To do so would violate your right to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution.³⁶

But if the police get a warrant – or there are “exigent circumstances” that justify the police action without a warrant – the police can forcibly draw your blood to perform a DUI blood test.³⁷

Until recently, forced DUI blood draws were fairly common in California. This is because “the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.”³⁸

However, the U.S. Supreme Court recently held that people have a strong privacy interest in preventing law enforcement from piercing their skin. The mere fact that alcohol in the blood dissipates quickly does not, by itself, justify doing a forced blood draw for a DUI chemical test without first obtaining a warrant.³⁹

Many California law enforcement agencies have, as a result, stopped the practice of forced blood draws in misdemeanor cases.⁴⁰ They will only forcibly draw your blood for a DUI chemical test when you are suspected of California felony DUI and a warrant cannot be quickly obtained.

California DUI becomes a felony when:

1. your DUI causes injury or death to another;⁴¹
2. you have 3 or more DUI or wet reckless convictions within the prior 10 years;⁴² or
3. you have at least one prior felony DUI conviction.⁴³

6. What are the Penalties for Refusing to Submit to a California DUI Chemical Test?

There are basically two potential consequences of refusing to take a post-arrest DUI blood or breath test in California.

First, if you are eventually convicted of DUI, you will face enhanced penalties for your chemical test refusal.

Second, you will automatically lose your driver’s license for some period of time after refusing to take a DUI chemical test.

6.1. What is the impact of chemical test refusal on DUI criminal penalties?

If you go to trial and are convicted of a chemical refusal, you face enhanced penalties. These are in addition to and consecutive to your underlying sentence for a California DUI.

The enhanced DUI chemical test refusal penalties are:

• for a first DUI offense, an additional 48 hours in county jail and a minimum nine-month California DUI school (in lieu of the three-month program for first-time DUIs that don’t involve refusals);

• for a second DUI offense within ten years, an additional 96 hours in county jail;
• for a third DUI offense within ten years, an additional 10 days in county jail; and
• for a fourth or subsequent DUI offense within ten years, an additional 18 days in county jail.

6.1.1. Could refusing a DUI breath or blood test help me in my DUI criminal case?

Even though a breath/blood test refusal increases your potential DUI penalties, refusing a chemical test could actually have a positive impact on your criminal DUI case.

Without corroborating DUI chemical test results, the D.A. may not believe that the arresting officer is credible. Or he/she may feel that the officer is not articulate enough to convince a jury of your guilt.

In that event, your DUI charges could be dismissed outright or else reduced to a California “wet reckless.” This is a less serious charge of reckless driving. It is sometimes accepted as a plea bargain to a DUI.⁴⁴ It essentially means you admit to driving with some measurable amount of alcohol in your blood. (Another possible plea bargain is “dry reckless,” which means you admit only to driving recklessly with no mention of alcohol.)

The D.A. could also dismiss the chemical test refusal charge, while leaving the DUI charge in place.

If the D.A. is unwilling to reduce or dismiss the charges, one of two things will happen:

1. you will be allowed to plead guilty or “no contest” to DUI with a chemical test refusal, or
2. you will have to take your case to trial.

6.2. What happens to my driver’s license if I refuse to take a DUI breath or blood test?

If you refuse to submit to a DUI chemical test, the DMV will automatically suspend your license.⁴⁵

You have ten days following your arrest to request a California DMV hearing to contest that suspension. Doing so may postpone your suspension, pending the outcome of the hearing.

Four issues will be addressed at the hearing:

1. Did the arresting officer have reason to suspect that you were driving under the influence?
2. Were you lawfully arrested?
3. Were you properly advised that your license would be suspended for one year…or revoked for two or three years (with prior DUIs)…if you refused to submit to or failed to complete a DUI chemical test?
4. Did you willfully refuse to submit to or fail to complete a chemical test after the officer asked you to do so? ⁴⁶

If you prevail at this hearing, your license will not be suspended by the DMV. If, however, you are unsuccessful, your punishment will include:

• a one-year driver’s license suspension if it is your first DUI offense,
• a two-year license revocation if it is your second DUI offense within ten years, or
• a three-year license revocation if it is your third DUI offense within ten years.⁴⁷

The DMV will take this action independently of what happens with a criminal or DUI case. However, you may be able to regain your lost driving privileges due to an alleged DUI chemical test refusal if:

• you are found not guilty of DUI at trial, or
• the D.A. dismisses your case for lack of evidence.⁴⁸

Let’s take a closer look at how the outcome of your DUI case affects your status with the California DMV.

6.2.1. What happens to my driver’s license if I refuse a DUI chemical test but my DUI charges are dismissed?

You may be entitled to have a second DMV hearing to try to get your suspension/revocation for a chemical test refusal lifted if, because of lack of evidence:

• the D.A. elects not to file criminal DUI/chemical refusal charges against you, or
• the D.A. files DUI charges, but the court dismisses them.⁴⁹

However, the DMV is not required to follow the D.A.’s or the court’s lead. The D.A. is concerned with whether there is enough evidence to convict you of a DUI beyond a reasonable doubt.

But the DMV hearing is an administrative hearing, rather than a criminal trial. The DMV need only prove that it was more likely than not that you improperly refused a DUI chemical test.

6.2.2. What happens to my driver’s license if I plea bargain to a “wet reckless” charge?

A plea of guilty or “no contest” to a wet reckless or any lesser offense will not reverse a DMV license suspension/revocation for a DUI chemical test refusal. This is so even if the prosecutor drops the DUI and test refusal charges.

7. How Can I Fight a California DUI Test Refusal Charge?

Your California DUI defense lawyer will discuss with you the best defenses. Some of the more common defenses in DUI chemical test refusal cases include:

• There was no “lawful” arrest.

Your DUI arrest is unlawful if the officer didn’t have probable cause for a California DUI stop or arrest.

If the arrest was unlawful, then you have not given implied consent to chemical testing. Once the charges against you are dismissed – or the jury finds you not guilty – the chemical test refusal charges will be dismissed.

Example: You were arrested for DUI, but the officer didn’t actually see you drive. He only saw you sitting in your parked car with the engine running. When he asked you to submit to a DUI chemical test, you refused and he arrested you.

But since the crime of DUI requires that your vehicle actually be moving, the officer could not reasonable believe you had committed a crime.⁵⁰ The arrest is unlawful, and both the DUI and chemical test refusal charge should be dismissed.

• The arresting officer didn’t advise you of your obligation to submit to a DUI chemical test.

California law requires that the arresting officer advise you of the consequences for refusing to submit to a chemical test.⁵¹ An officer’s failure to do so is a fatal flaw in the DUI investigation. It should result in the dismissal of your refusal charge.

• The “refusal admonition” was confusing or misleading.

The chemical test refusal admonition must also be given in a clear and unambiguous manner. If it isn’t, that may justify your refusal.

Example: the officer told you that your DUI chemical test refusal “could” (as opposed to “would) result in a license suspension/revocation. At least one California court has held that this violates the legal requirement of the admonition.⁵²

• Your refusal was the result of a serious injury or medical condition unrelated to drinking or drugs.

California law recognizes that in some cases you may not be capable of giving meaningful consent or refusal to a DUI chemical test. For example, a medical condition or injury rendered you incapable of making a choice. However, if your incapacity results even partly from voluntary ingestion of alcohol or drugs, your refusal will not be excused.

Example: You have a mild stroke while you are driving and veer off the road. A California Highway Patrol officer pulls you over and asks you for your license and registration.

The officer notices you seem confused and asks you to take field sobriety tests. You agree. But he mistakes your symptoms of stroke – difficulty walking, vomiting, and confusion – for DUI. He arrests you and asks you to take a DUI chemical test. You refuse.

Once the prosecutor is presented with evidence that you suffered a stroke, your refusal to take a chemical test should be excused.⁵³

But… let’s say that your confusion was caused instead because you were driving while on Ambien. If you voluntarily took the sleeping pill, your refusal to submit to a DUI chemical test will not be excused. Even though you were taking it under doctor’s orders…and the drug incapacitated you…you voluntarily took something that could affect your ability to drive and make decisions.⁵⁴

Call us for help…

Contact us for help with your DUI case.

If you or a loved one is charged with chemical test refusal and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in the office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada DUI defense attorneys represent clients accused of DUI and related offenses in Nevada. For more information please contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas, or see our article on Nevada DUI chemical test refusals.

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