Getting pulled over by a police officer can be intimidating and scary—especially
when they start to ask you whether or not you’ve had anything to
drink. When you’ve been suspected of DUI, one of the pounding questions
you will face is whether or not you can refuse a breathalyzer test.
In California, there is what is known as “implied consent”.
What does this mean for you as a driver? If you signed your driver’s
license and are legally able to drive a motor vehicle, you have already
given consent to be subject to chemical or breath testing. But does this
give police officers the blanket right to request a breath test from you?
Let’s take a closer look at what it means to refuse.
When Do Officer’s Use Breathalyzers?
Breathalyzer tests are done to help determine the blood alcohol centration of an individual,
or BAC. This gives law enforcement more insight on how intoxicated a person
may be, regardless of impairment. If they are over the legal limit (.08),
they may be arrested for DUI and brought in for further testing and questioning.
However, these tests are not 100% accurate.
There is a catch to your arrest—police can only request that you
take a breathalyzer test if you have been legally pulled over or arrested
for suspected DUI. If you’ve been pulled over without probable cause
to suspect DUI, they may have violated your rights.
What can help them develop reasonable suspicion?
- Speeding or any other reckless driving behaviors
- Slurred speech, red eyes, alcohol smell on the breath
- Strange, jittery, or sleepy behavior
- A driver’s own statement that they were drinking
field sobriety tests
What Happens if I Refuse a Test
Refusing to take a breathalyzer test after being arrested for suspected
DUI could be used against you in court according to California Vehicle
Code §23612. More than that, you face additional penalties that will
be compounded with your DUI penalties.
Keep in mind, this doesn’t include the use of a breathalyzer test
when an officer is attempting to
establish reasonable suspicion in order to arrest you. You have the right to refuse
the test if the police officer doesn’t have probable cause to test you.
However, if you try to refuse a test when a San Diego officer does have
probable cause for DUI, you face an automatic license suspension for up to a year, regardless of whether your BAC was above the legal limit or not. Also,
a two-year license revocation may be enforced if you have had a previous
DUI conviction in the last 10 years.
What Should I Do After Being Pulled Over?
It will most likely be in your best interest to agree to the breathalyzer
test. Regardless, it is crucial that you talk to a
San Diego DUI lawyer as soon as possible. You could be facing serious
penalties and consequences in both situations, and a lawyer knows how to handle
When you turn to JD Law for counsel, you get much more than just a San
Diego defense attorney. You get a lawyer who is a board certified criminal
law specialist and a former law enforcement officer. He has decades of
experience and can utilize his insight to craft a strong case on your
behalf. Don’t trust your future to just any defense attorney in
San Diego—trust James N. Dicks.
Reach out to the firm today at (619) 377-3722 for a free consultation.