Breathalyzer tests are a common way in which police officers determine a driver’s blood-alcohol concentration level when suspected of DUI. An officer can take this test before or after a DUI arrest, depending on the circumstances of a case. You can politely decline the test if it is administered before a DUI arrest without getting into additional legal trouble. However, it is a violation of the implied consent law if you refuse a breathalyzer test after an arrest.
A skilled DUI attorney can explain this better, depending on the circumstances of your case. They can also develop a strong defense if you are in legal problems for refusing a breathalyzer test.
An Overview of the California Implied Consent Law
When you are arrested for a DUI in California, it means one ot both of the following:
- You were operating a vehicle while your driving abilities were impaired by drugs or alcohol
- Your blood-alcohol concentration level at the time of your arrest was above the legal standard of 0.08% for ordinary drivers, 0.04% for commercial drivers and 0.01% for underage drivers.
If you omit a traffic infraction or are randomly stopped at a DUI checkpoint, and the police suspect you of driving while under the influence, they conduct a series of tests to investigate you for a DUI before making an arrest. An officer can ask you to submit to a breathalyzer test as part of the pre-arrest alcohol screening. If the officer has strong evidence against you, they can arrest you first and then administer a breathalyzer test. These two timings differ, and the consequences of refusing these tests differ.
Although preliminary alcohol screening is very important before a DUI arrest, you are not legally obligated to go through with it. You can politely decline and agree to take a test only under your attorney’s guidance. In this case, the police will use the results of their observation to determine whether to arrest or let you go. If you agree to a breathalyzer test before a DUI arrest and the test results implicate you further, the prosecution can use those results against you during the DUI trial.
However, you must carefully consider what you do after an arrest. The implied consent law means that you have already consented to a BAC test after a legal DUI arrest. This means that you will violate the law if you refuse a breathalyzer test after incarceration. An officer will ask you to submit to the test and wait for your approval. If you agree and the test is taken, the results can be used against you during the trial. If you refuse to submit to the testing, you will face additional legal issues that could result in more severe penalties.
To understand whether or not to agree to a breathalyzer test, contact an attorney immediately if you are under investigation for a DUI. A skilled attorney will quickly determine the situation to advise you on the right action to take when the police ask you to submit to a breathalyzer test. They will also advise you on what to say and what not to say to avoid incriminating yourself.
Refusing a Breathalyzer Test Before a DUI Arrest
If an officer pulls you over, and they suspect that you are driving under the influence of alcohol or drugs, they first investigate you before making an arrest. An officer will start by asking simple questions as they observe your behavior and look for signs of intoxication. For example, they can ask you to hand over your license and registration. If you have physical signs of intoxication, like bloodshot eyes or slurred speech as you respond, the officer can ask you to step out of your vehicle.
While outside, the officer may ask you to perform a series of tests to determine whether you are impaired by alcohol. This is part of the preliminary alcohol screening that the police use to obtain enough evidence to make an arrest. This is also the point when an officer can ask you to take a breathalyzer test to determine your BAC. A breathalyzer is a handheld device that uses a breath sample to estimate the amount of alcohol in your bloodstream.
You can politely accept or decline the officer’s request without being penalized. Although the preliminary screening tests are important, they are usually not mandatory. However, this only applies to some drivers. If you are an underage driver (21 years or younger) or are on probation following a DUI conviction, you are legally mandated to submit to random DUI tests. This means that you can face prosecution for refusing to take a breathalyzer test, even before a DUI arrest.
Unfortunately, many police officers do not present breathalyzer tests as an option when they start investigating you for a DUI. However, it helps to know that this test, before a DUI arrest, is a preliminary screening test like the field sobriety tests. In addition to asking for a breath sample, the officer may require you to walk in a straight line to test your coordination and movement. Field sobriety tests only help the police establish grounds for a DUI arrest.
However, if you are an underage driver or are on probation for a DUI-related conviction, refusing to take a breathalyzer test can be used against you. In most cases, it is taken as an admission that you are guilty of DUI. If you are not underage or on probation, your attorney will likely advise you against agreeing to the test. This is because the results can be used against you during the trial.
Chemical Tests after a DUI Arrest
Remember that after a DUI arrest, the implied consent law takes effect. This means that it will be unlawful to refuse a breathalyzer test, even if you believe that the arrest is unlawful. If you do that, there will be legal consequences that could worsen your situation. An officer can ask for a breathalyzer test after an arrest, even if they administered one before an arrest.
However, you should be able to provide a breath sample from your lungs for this test to give accurate results. If you are highly intoxicated or unconscious, the arresting officer cannot conduct a breathalyzer test. In this case, they use other chemical tests, like blood or urine tests.
An officer can also ask for a blood or urine test if they suspect you of driving under the influence of drugs. A breathalyzer test will not determine the type or level of drugs in your system.
Remember that after an arrest, you lose your legal right to refuse a chemical test. You should submit to the test even if you know you are innocent or believe that the arrest is unlawful. If the judge later finds out that the arrest was unlawful, they can dismiss your charges, regardless of the test results.
Choosing a Chemical Test
Breathalyzer tests are more common than other chemical tests used in determining a driver’s blood-alcohol concentration levels in DUI cases. They are easy to administer and are less invasive. However, the police should allow you to choose the test you prefer after you are arrested. You can choose a blood or breath test.
When it comes to urine tests, they are only administered in specific circumstances, including the following:
- If the officer suspects that you are high on drugs, and, for some reason, you cannot complete a blood test
- The other two tests (blood and breath) are unavailable
- You have a particular medical condition that prevents you from submitting a breath or blood sample.
If the officer administers a urine test, they must provide a valid reason for their decision.
Remember that if an officer suspects that you are high on drugs and not alcohol, a breathalyzer test will not suffice. In that case, they may request you to submit a blood or urine test (depending on other circumstances of the case). They can start by offering you a choice between a blood test and a breath test. If you take a breath test and the officer is not satisfied with the results, they can ask for a blood sample. An officer van also involves a drug recognition expert in case they suspect that you are on drugs.
Some of the clear indications that the officer should test you for drugs include the following:
- If you make incriminating statements, like, ‘I used a little coke, or ‘I only used some meth’
- If you show objective symptoms of being high on drugs, like a prolonged blank stare, constricted or dilated pupils, an elevated heart rate or pulse, or a preliminary breathalyzer test that is negative for alcohol
- If there is physical evidence that you are on drugs, including having a prescription bottle in your person, a strong smell of marijuana from your breath or vehicle, or having drug-related paraphernalia.
In this case, the officer can request a blood or urine sample instead of a breath sample.
How the Law Treats Chemical Test Refusals
Refusing a chemical test is not as straightforward as it sounds. Refusal can be direct or indirect. If you directly and outrightly decline a breathalyzer test, an officer will not insist or force you. In that case, it will go into the record that you failed to submit to the testing. An indirect refusal is different and can take various forms. For example, if you are asked to choose your preferred chemical test and decline, an officer can construe that as a refusal.
Generally, police officers only give suspected DUI offenders one opportunity to agree to a chemical test. If you initially decline, you cannot change your choice afterwards. The officer does not have a legal duty to ask again. Thus, you should carefully think about your options and possible consequences before declining or agreeing to a chemical test.
If an officer asks you to submit a breath sample and you remain silent or take no action, the officer will consider that a refusal.
Your right to an attorney is generally granted after an arrest. If you do not contact an attorney once this right is granted, the police will not grant you the same right after asking you to submit to a breathalyzer test.
If you choose a blood or urine test after a DUI arrest, the officer determines where and when the testing will be done. You have no right to call your own medical professional to administer the test or be present during the testing. The officer can grant it or not, at will. What matters is that the test is performed by a trained law enforcement officer and at an outside lab that complies with Title 17 regulations.
Consequences for Refusing a Chemical test after a DUi Arrest
Remember that violating the implied consent law is a serious matter. It results in the following consequences:
- Enhanced penalties if, eventually, the court finds you guilty of driving while under the influence
- An automatic suspension of your driver’s license. You can request a DMV administrative hearing within days to fight the automatic license suspension.
The enhanced penalties apply as follows:
- An additional forty-eight hours in jail if convicted of a first DUI
- An additional ninety-six hours in jail if convicted of a second DUI
- An additional ten days in jail if convicted of a third DUI
- An additional eighteen days in jail if convicted of a fourth and subsequent DUI.
Find an Experienced DUI Attorney Near Me
If you or someone you love is under arrest for a DUI in San Diego, or is worried after refusing a breathalyzer test, a skilled DUI attorney can help. An attorney can determine the type of refusal and the circumstances of their case to advise them on their options and possible results. They can also start working on a solid defense if the refusal happened after an arrest.
We understand how confusing the circumstances leading up to a DUI arrest can be at San Diego DUI Attorney. We can provide all the information you need to better understand your situation and the possible outcomes. Call us at 619-535-7150 to discuss your case and our services further.
