Refusal to take a breathalyzer test or a blood test after being arrested for driving under the influence (DUI) in California will come with negative consequences.
A chemical test refusal will result in harsher DUI penalties and a mandatory driver's license suspension, regardless of the outcome of your DUI case.
Under California's implied consent law, you have no legal right to refuse a breath test after a DUI arrest.
Notably, getting charged with a chemical test refusal does not always mean you will be convicted of DUI in court. You can still challenge the refusal allegation by arguing that your arrest was unlawful.
Perhaps the police officer did not clearly advise you of the consequences of refusing a chemical test.
By driving in California, you are presumed to have consented to chemical testing for blood alcohol levels (BAC) or drugs if you are lawfully arrested for DUI, which is commonly known as "implied consent."
In California, it is per se illegal to drive with a BAC of 0.08% or higher, even when you are not impaired. Pre-arrest breath tests are optional in California DUI cases. However, post-arrest tests are mandatory.
What about refusing a hand-held preliminary alcohol screening (PAS) breath test before you are arrested for driving under the influence (DUI) in California? Let's review below.
What is the PAS Breath Test?
The PAS breath test is a handheld device used by police to measure your blood alcohol content (BAC) roadside. It is normally used during a DUI investigation.
The PAS test is different from the evidential breath test (EBT) administered after an arrest at a police station. Because it is sometimes inaccurate, it is not always admissible as evidence in a trial.
Notably, however, it can be used as evidence of probable cause leading to your arrest. The PAS breath test is considered a preliminary screening tool. Under California Vehicle Code 23612 VC, any driver who has not yet been arrested has different rights than those who are already under arrest.
Can You Refuse a PAS Breath Test?
Yes. Suppose you were pulled over by law enforcement on suspicion of driving under the influence (DUI) in California. In that case, the police officer might ask you to take a Preliminary Alcohol Screening (PAS) breath test. Notably, you need to know that 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.
Police will not always tell you it's your choice. The PAS test is a type of field sobriety test (FST), such as walking a straight line. In other words, it's another tool to help police decide whether to arrest you.
Refusal to take a PAS test cannot be admitted at trial as evidence of guilt. However, if you agree to a PAS test, the results could be used to help convict you of a DUI.
Thus, most attorneys will not recommend agreeing to a preliminary breath test unless you are under 21 or on DUI probation. Taking a PAS test has advantages and disadvantages. Understanding your rights in this situation is critical to making an informed decision.
In some counties, such as Ventura and Orange County, law enforcement uses an online Evidential Portable Alcohol System (EPAS) for post-arrest breath tests.
Refusal and Implied Consent?
As noted, you have the right to refuse the PAS breath test before an arrest. California's implied consent law requires drivers to submit to chemical testing (breath, blood, or urine) to determine BAC levels, which applies only after a lawful arrest.
Thus, the PAS breath test, conducted before an arrest, does not fall under the mandatory compliance law.
As noted, there are exceptions in which vehicle drivers are legally required to submit to a PAC breath test when requested by police, such as the following:
- Drivers on probation for prior DUI convictions must submit to PAS tests when asked by police. Refusal can lead to probation violation charges and additional penalties.
- California's "Zero Tolerance" law requires that any driver under 21 who is pulled over by police on suspicion of DUI submit to a PAS test. Refusal can result in an automatic suspension of their driver's license.
Why Would Someone Decline the PAS Test?
Keep in mind that the PAS breath test is not normally used as direct evidence in court if you are charged with DUI. It's typically entirely inadmissible because too many variables could lead to inaccurate results.
Rather, the PAS test is used to establish probable cause for your arrest. Thus, there are situations when it's in your best interests to decline to take the test, preferably in a respectable manner. Some of the reasons for a PAS refusal include:
- PAS breath tests have a margin of error of about 15 percent when measuring blood alcohol content (BAC). Another chemical testing could occur if you're arrested, but an inaccurate reading roadside can lead to an arrest if you're below the legal limit.
- If you have not been drinking, you may assume taking the PAS will clear you of suspicion. However, other circumstances can lead to false positives, which could lead to your arrest.
- Without the PAS results, the police officer must rely on field sobriety tests and other observational evidence, which can be more subjective and contestable in court.
What Potential Consequences Should You Consider?
Notably, when refusing to take a PAS breath test, there are potential consequences to consider, such as the following:
- Refusing the PAS test can make the police officer more suspicious that you are driving under the influence. While law enforcement cannot legally arrest you for not taking the PAS test, they can arrest you if there is probable cause suggesting you are DUI.
- Refusing a PAS test might lead the police officer to believe you are attempting to hide intoxication, resulting in your arrest based on other observed behaviors or evidence. Thus, after being arrested, you must take a chemical test under the implied consent law.
- Even when you refuse the PAS test, police might still conduct other field sobriety tests (FSTs) to establish probable cause for an arrest.
- If you are arrested and charged, your refusal to take the PAC breath test can be used against you in court as evidence, impacting the case outcome.
Suppose you decide it's advantageous to decline a PAS breath test during a traffic stop. In that case, be polite and calmly tell the officer that you assert your right to refuse a PAS breath test and want to consult a lawyer before submitting to one.
As noted, however, you should know that if the police officer still suspects you are DUI, they will seek other ways of establishing probable cause. For additional information, contact our law firm, Cron, Israels & Stark, in Los Angeles, CA.
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