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Can I Refuse to Take a Breath Test in California?

Drivers in California may refuse to submit to breath testing after being arrested on DUI charges, but it is not without consequence.

When law enforcement officers pull over drivers in California, there are a number of legal procedures and laws that dictate the basics of the traffic stop. For the officers, these stops may be routine. For the drivers, however, there may be a number of questions and concerns swimming through their minds.

It is imperative that every driver understands his or her rights in these situations. Here, we will discuss the right to refuse taking a breath test in relation to a DUI investigation.

Implied Consent

Every state across the country has what is known as an implied consent law. These laws essentially state that anyone who has a license in that state has given his or her implied consent to undergoing either a breath or blood test upon being lawfully arrested on charges of driving under the influence.

In California, the law states that these tests may be used to determine either alcohol or drug content in the person's blood. When it comes to drugs, the law states that if a blood test is unavailable, the person has an implied consent to submit to urine testing. It should be noted that the law permits the driver to choose whichever test he or she prefers. However, the officer may order a blood test in the event that he or she believes drugs may be involved.

Refusing the Test

Technically, drivers are permitted to refuse to take the test. Under the law, the arresting officer must alert the driver to the consequences of failing to take the test. Those consequences could include the following:

  • A one-year license suspension
  • A fine
  • Possible imprisonment, depending on the nature of the event
  • The refusal may be used as evidence in court

If someone has had a similar violation within 10 years of the arrest and refuses a test, he or she may face a two-year license suspension.

When weighing the possible outcomes of refusing a test with the possible outcomes of a DUI conviction, someone may notice similarities. For example, a first-time DUI without any injuries is punishable by up to 48 hours in jail, thousands of dollars in fine and license suspension.

In addition to alerting the driver to the possible repercussions, the arresting officer must also let the driver know that he or she does not have the right to an attorney when it comes to choosing whether or not to take the test.

Other Situations

In some cases, drivers may be unable to refuse the test. For example, if the person is incapable of refusing or is unconscious, the test may still be administered. However, the person must be under arrest, or there must be a warrant for the testing.

Anyone who has concerns about this issue should speak with a criminal defense attorney in California.