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Can I Legally Refuse a Breathalyzer Test?

By Criminal Defense Attorney on January 18, 2016

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
  • Evidence from 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 such matters.

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.


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