Your Rights Concerning DUI Refusal in California

Updated: August 29, 2017, 12:40 PM, 2:52 PM

Many people who are pulled over in the state of California under suspicion of driving under the influence (DUI) refuse a blood alcohol (BAC) test – but if you’ve been arrested because of suspected DUI and refuse to provide a chemical test, you may face additional enhancements to your DUI charges. In California, like most States, you agreed to provide a chemical test of your blood or breath at the request of law enforcement when you are arrested for driving under the influence. This agreement is commonly called “ Implied Consent .” Until recently California interpreted the United States Constitution to permit forcible blood draws , without a warrant, in refusal cases. These significant violations of the US Constitution went on until the United States Supreme Court declared that a warrant is required in cases where consent wasn’t given by the accused.

In California, a DUI refusal can be far more serious than a typical DUI charge. If you have been charged or think there is any possibility that you might be charged with a DUI refusal, contact an experienced DUI attorney in your local area. If you have been arrested for DUI refusal in Northern California, contact Bair Legal to speak with an attorney who has experience handling DUI refusal cases.

What Constitutes A California DUI Refusal?

Can you deny a Pre-Arrest Breath Test?

After you have been stopped and the Officer has determined that he/she needs additional evidence to determine whether to arrest you for driving under the influence of alcohol (or drugs) they may ask you to provide a breath test in a hand-held “preliminary alcohol screening device.” They may even tell you that it is only used to “help them determine if you’re safe to drive” or that it “can’t be used in court.” Unfortunately, neither of these statements are probably true. If they are asking for a preliminary breath test they presume you are under the influence: if you blow a zero then they think you’re on drugs; if you blow something higher then more than likely it will be used against you in court .

Refusing to provide a preliminary alcohol screening test (PAS Test) is permitted[i] unless you are under 21 [ii] or on probation for a prior DUI conviction. [iii] If you are under 21 or on probation you will face additional consequences for refusing a PAS Test .

What happens if you refuse to take an alcohol test?

Refusing to provide an alcohol test can result in additional charges or enhancements, even if you provided a sample later because you changed your mind or law enforcement procured a warrant. The additional charges or enhancements extend the duration of license suspension and can expose you to additional jail time. Therefore, it is rarely advisable to refuse to provide a post-arrest chemical test if you have been lawfully arrested.

What happens if you refuse to take a blood urine or breath test?

A chemical test refusal impacts both your license and your possible jail time. If you request a hearing at the DMV within 10 days of your arrest, you can defend your license from being suspended. In the case of a refusal charge this is very important: A refusal, if proven at the DMV hearing, will result in a suspension of one, two or even three years. The suspension from the DMV cannot be shortened or converted into a restricted or provisional license This means NO DRIVING for the suspension period.

A refusal enhancement in court has a similar effect, if alleged, and proven, it serves to increase the amount of time required in jail from an extra 48 hours to 18 days based on the facts of your case and if there are prior DUI convictions.

What is a chemical test for DUI?

In California, a person arrested for suspicion of DUI has a choice of providing a sample of their blood or breath. A urine test is available in limited situations.

If an investigating officer suspects that you’re under the influence of alcohol you may submit to either a blood test or a breath test unless one of these tests is not available. In the event an accident occurred and medical treatment is deemed necessary prior to being taken to jail, a blood test may be the only available test. (Hospitals rarely have the equipment necessary for breath testing). Failure to provide an adequate breath sample may also result in the breath test not being available and a blood test being required.

When drugs are the suspected cause of the impairment and an officer has a clear indication that a blood test will reveal evidence of you being under the influence, the officer may request a blood test. In the event blood testing is not available or you are an unsuitable candidate for blood testing due to certain medical conditions you can provide a urine sample. Finally, when neither a blood test or a breath test are available, a urine test may be offered.

Can a DUI refusal be dismissed?

Yes, a skilled DUI defense attorney may be able to successfully defend this enhancement at both the DMV and in court. Defenses to the refusal allegation usually stem from the underlying case -- you were not lawfully stopped or arrested -- but also result from the “admonition.” The admonition is an explanation of the law provided by an officer before you are given the choice to provide a chemical test, or not. The admonition is supposed to explain the consequences of your decision and your rights, this area of the law is evolving rapidly due to a United States Supreme Court decision regarding criminalizing dui refusals.

Generally, if you have been pulled over and suspected of DUI, you have the right to refuse a pre-arrest breathalyzer test. (The Preliminary Alcohol Screening (PAS) breathalyzer is a voluntary test for persons who are over the age of 21 and are not on probation for a prior DUI.) The same goes for field sobriety tests, as well. Note that this is different from a chemical blood alcohol test that may be performed at a hospital or police station which, according to California Vehicle Code section 23612 you have already given "implied consent" simply by operating a motor vehicle. Refusing or resisting this chemical test will result in an additional charge on top of your DUI, known as "refusal enhancement."

When it comes to California DUI refusal, you should also be familiar with the phrase "implied refusal." Examples of an implied DUI refusal include failure to blow hard enough into the breathalyzer, or if a person is unable to give consent due to unconsciousness. Sometimes, the PAS machine itself may be broken or malfunctioning, and through no fault of your own you may be charged with implied refusal. Under the law, if you cannot complete the test of your choice, you must provide the other option; failure to do so will result in a refusal being alleged. It is also important to understand that if you refuse the initial PAS but give no objection to the drawing of blood in a hospital or police station, you cannot be charged with DUI refusal.

What Happens If I Refuse A Breathalyzer Test?

If you refuse a breathalyzer test and/or a field sobriety examination, you will probably be arrested – though if you have been asked to take these tests in the first place, then the officer was more than likely already planning on arresting you regardless, and there are no additional charges for refusing these tests. A growing number of jurisdictions are allowing District Attorneys to allege a "consciousness of guilt" for persons refusing to comply with an Officer’s "in field" requests. This means that the refusal was essentially disingenuous.

There are, however, a number of legal ramifications that may result due to your refusal of a BAC test at a hospital or police station. For a first-offense DUI refusal enhancement charge, offenders may face an additional 48 hours of jail time and a year-long driver's license suspension; a second offense brings an additional 96 hours of jail and a two-year driver's license suspension, while a third offense constitutes an additional 10 days of jail and a three-year driver's license suspension. These charges are, of course, on top of any sentences or fines that are imposed due to a DUI charge.

Is It Possible To Fight DUI Refusal Charges in California?

It is possible to fight cases involving DUI refusal in California – although a qualified DUI attorney really is necessary due to the complexity of such legal cases. As long as you are aware of your rights and have an experienced legal team on your side, you may be able to plead guilty to lesser charges or even have the charges dropped entirely. Some possible defenses include:

  • Unlawful DUI Arrest: If it is found in a court of law that the officer did not have a sufficient legal reason to pull you over in the first place, or to place you under arrest, then any of your potential charges can and will be dropped. Furthermore, if your DUI charge is dropped, then you cannot be charged with a refusal enhancement and this charge must be dropped as well. These courtroom outcomes do not impact potential suspension from the DMV through the Administrative Per Se process.
  • The arresting officer failing to inform you about the consequences of a Breathalyzer test refusal is another reason. When you refuse a test, the officer must give you a very clear, concise, and detailed explanation of the possible consequences as a result of your refusal. If this has not been performed by the officer, then an attorney will do their best to make sure that justice is served and your charges are dropped.

As you can see, there are a lot of factors that determine whether or not you are actually guilty of DUI or DUI refusal in a court of law. With the proper legal expertise working on your side, you can be sure that all of these factors are considered and that you are given a fair trial in the state of California.


Implied Consent:

Forcible Blood Draws:

United States Supreme Court Decision: