Every Californian who has a driver’s license gives his or her “implied consent” to being tested for blood alcohol content (BAC) after he or she has been lawfully arrested as part of the privilege of being able to drive. However, the officer must inform you that if you refuse to take and complete a blood or breath test, your driver’s license will be automatically revoked for one year on the first offense, and requires mandatory custody on a conviction. If you were not properly advised of the consequences of the refusal, it is possible to avoid the excessive suspension mandated by law.
A police officer may administer a preliminary alcohol screening (PAS) test such as a hand-held Breathalyzer test, when you are pulled over to determine if you should be arrested for DUI in the first place. You do not have to, and should not, take this test. This test is optional for adults, but mandatory for anyone under 21 or anyone on DUI probation. If you submit to the PAS test, then refuse the second test after being arrested, it is still considered a refusal, since the hand-held test in the field is usually not considered a “chemical test.”
Refusing a Breathalyzer or other DUI chemical tests will result in some very steep penalties. As soon as you are arrested for DUI, call me at Bailey Criminal Defense, Inc. As a Vista, California, attorney, my advice on breath test refusal will be invaluable to you. The faster you have a good lawyer on your side, the better off you are.
If you feel that you were not fully informed of your rights when you were asked to take a BAC chemical test after your arrest, you have the right to challenge the refusal charge. The police officer has to make absolutely clear to you the penalties you will suffer if you refuse the test. In many cases, the state will claim that your refusal to take the test indicates that you were aware that you were intoxicated and didn’t wish to be caught.