Refuse Breathalyzer California – What happens if I do?

Refusing to take a breathalyzer test or a blood test after being arrested for driving under the influence in California carries consequences. A chemical test refusal triggers harsher DUI penalties and a mandatory driver’s license suspension regardless of the outcome in your DUI case.

This is because of California’s “implied consent” law: You have no right to refuse a breath test after a DUI arrest.

Traditionally, California’s “implied consent law” applied to blood tests as well as to breath tests. However, the U.S. Supreme Court suggested that defendants may not be penalized for refusing blood tests when the police have no warrant.

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

Number of Prior DUIs in the Past 10 Years	Additional Jail Time for Refusing a Breath Test	License Suspension/Revocation for Chemical Test Refusal
0	48 extra hours in jail; six extra months of required DUI school	1-year license suspension
1	96 extra hours in jail	2-year license revocation
2	10 extra days in jail	3-year license revocation
3 or more	18 extra days in jail	3-year license revocation

Simply being charged with a chemical test refusal does not necessarily mean that it – or the DUI itself – will be sustained in court. You can fight the refusal allegation by arguing:

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

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

• 1. What is implied consent?
• 2. Refusals
• 3. Choice of Tests
• 4. Types of Refusals
• 5. Forced Blood Draws
• 6. Penalties for Refusing
• 7. Defenses
• Additional Reading

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

1. What is implied consent?

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 “implied consent.”

In California, it is per se illegal to drive with a BAC of 0.08% or higher, even if you are not impaired.

2. Refusals

Pre-arrest breath tests are optional in California DUI cases. Post-arrest tests, however, are mandatory. We discuss this in detail next.

Pre-Arrest PAS Breath Tests

After you are pulled over – but before you are arrested – you may be asked to take a handheld preliminary alcohol screening (PAS) breath test.² There is no penalty for refusing 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. Still, 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 officer 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 Therefore, we do not recommend agreeing to a preliminary breath test unless you are under 21 or on DUI probation.

Post-Arrest Breath and Blood Tests

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 took the PAS test.⁶

This rule traditionally applied to both breath and blood tests. Then in 2016, the U.S. Supreme Court decision Birchfield v. North Dakota 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.

Refusals After a False Arrest

You do not have the legal right to refuse a post-arrest chemical test on the basis that you think you have been wrongfully arrested.⁷ Though 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

Handheld Post-Arrest Breath Tests

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 Bluetooth.

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

3. Choice of Tests

When you are suspected of drunk driving in California, you must generally be given the choice of a breath test or a 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.

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 blood test if the officer has a clear indication that it would show the presence of drugs.¹²

The arresting officer can decide whether a blood test is required. Alternatively, the police could bring in a drug recognition expert (DRE).

A “clear indication” that a 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 in your car.

What if my preferred DUI chemical test is not available?

In rare instances, a 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 breath testing device.

In such a case, you must be given your choice of whichever tests are available at the facility.¹³

What if my DUI breath test results are not reliable?

If the officer believes your breath test results are unreliable, you may be required to submit to a blood or urine test. Usually this will be either because:

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

Five reasons why this could happen include the following.

1) The DUI Breath Machine Is Not Working Properly.

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

2) You Are Unable To Generate a Sufficient Volume of Air.

Breath machines are calibrated to base its readings 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.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, they may believe you are deliberately trying to avoid blowing hard enough to register a result.¹⁶

3) 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 to 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.

4) The Officer Is Not Properly Trained in the Chemical Testing Procedure.

California DUI testing regulations require that the people administering blood and breath tests be properly trained.¹⁹ That does not mean this is always observed.

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

5) The Officer Is Mistaken.

Sometimes we forget that police are people, too. The officer may genuinely believe that you are driving impaired, even if you are not. They may be hoping for a higher result.

Also, the person administering the chemical test may be tired. They may not realize they forgot do part of the procedure.

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

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

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 neglects to offer you a choice. If procedures are not strictly followed, the results can be challenged later.

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

What if I have a medical condition?

Certain medical conditions may excuse – or prevent you – from taking a particular chemical test. They will not excuse you from the requirement of a 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 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” 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 law).²³

What if I am unconscious or severely injured?

You are not legally excused from a 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 However, if you were unable to give meaningful consent as a result of your consumption of alcohol or drugs – even prescription ones – your chemical test refusal will not be excused.²⁶

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 chemical test will constitute a chemical refusal.²⁸ Plus 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 driving under the influence.²⁹

4. Types of Refusals

Although the concept of “refusing” a DUI chemical test may seem straightforward, it really is not. 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 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 However, 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 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. Forced Blood Draws

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

However, 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.³⁷

The U.S. Supreme Court recently held that people have a strong privacy interest in preventing law enforcement from piercing their skin.³⁸ The mere fact that alcohol in the blood dissipates quickly does not, by itself, justify doing a forced blood draw 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 when:

• you are suspected of 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. Penalties for Refusals

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

1. If you are eventually convicted of driving under the influence, you will face enhanced penalties for your chemical test refusal; and
2. You will automatically lose your driver’s license.

These consequences are discussed in detail next.

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 penalties for refusals are as follows:

• First DUI offense in 10 years: an additional 48 hours in county jail and a minimum nine-month DUI school (in lieu of the three-month program for first-time DUIs that do not involve refusals);
• Second DUI offense in 10 years: an additional 96 hours in county jail;
• Third DUI offense in 10 years: an additional 10 days in county jail; and
• Fourth or subsequent DUI offense in 10 years: an additional 18 days in county jail.

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:

• believe that the arresting officer is not credible, or
• 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 “wet reckless.”⁴⁴ It 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.

Note that you can still be convicted of driving under the influence even without a breath or blood test. The D.A. can rely on such circumstantial evidence as:

• witness testimony,
• field sobriety test results, and
• video footage.

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 if you have 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. Though if you are unsuccessful, your punishment will include:

• a one-year driver’s license suspension if it is your first DUI offense in 10 years,
• a two-year license revocation if it is your second DUI offense in ten years, or
• a three-year license revocation if it is your third DUI offense in ten years.⁴⁷

The DMV will take this action independently of what happens with your criminal case. If your DUI charge is dropped, however, you may be able to regain your lost driving privileges, as discussed below.⁴⁸

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

You can ask for a second DMV hearing to try to get your 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

Still, the DMV is not required to follow the D.A.’s or the court’s lead. The D.A.’s burden is to prove your guilt beyond a reasonable doubt; meanwhile, the DMV need only prove that it was more likely than not that you improperly refused a DUI chemical test.

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 revocation for a chemical test refusal. This is so even if the prosecutor drops the DUI and test refusal charges.

7. Defenses

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

There Was No “lawful” Arrest.

Your DUI arrest is unlawful if the officer did not have probable cause for a 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 did not 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.

Since the officer never saw you drive, the officer could not reasonable believe you had committed a crime.⁵⁰ The arrest is unlawful, and both the DUI and chemical test refusal charges should be dismissed.

The Arresting Officer Did Not 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 officer’s chemical test refusal admonition must be given in a clear and unambiguous manner. If it is not, 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

Additional Reading

For more in-depth information, refer to these scholarly articles:

• The Privacy Implications of DUI Refusals and Forced Blood Alcohol Tests: What Judges Can Do – Criminal Justice.
• Shed Thou No Blood: The Forcible Removal of Blood Samples from Drunk Driving Suspects – California Law Review.
• Do I Really Have a Choice – Compulsory Blood Tests on Drunk Drivers and the Fourth Amendment – Western State University Law Review.
• Drunk Driving, Implied Consent, and Self-Incrimination – The Journal of the American Academy of Psychiatry and the Law.
• Taking Blood Evidence for Granted: McNeely and Birchfield’s Unintended Consequences – Stanford Law School.

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