The statutory language of Vehicle Code 23612 in California puts all drivers on notice that by getting behind the wheel of a vehicle and driving on California’s roadways you are in effect consenting to the chemical testing of blood or breath for purposes of confirming that you are under the influence after a lawful arrest for suspicion of DUI.
This code is often referred to when individuals are pulled over for DUI. While the statute is clear there is often misconception and misunderstanding of the law by parties that may not understand their rights and by the application of the law by officers pulling over a driver for a potential DUI.
Differentiating Preliminary Breathalyzer Tests and Chemical Testing
If you are pulled over and an officer believes you might be under the influence of alcohol, they may attempt to perform a breathalyzer test in addition to other field sobriety tests at the scene. This breathalyzer test that is done on the roadways is also called a preliminary alcohol screening test. It involves a driver blowing into a device that will measure the blood alcohol content based on an individual’s breath.
It is important to distinguish a PAS from a chemical test that is performed during the processing of an arrest at a police station. A chemical test for DUI purposes can be done through blood, breath, or in some instances, urinalysis. Chemical tests have a tendency to be much more thorough and accurate than PAS tests conducted in the field.
Can You Refuse a Breathalyzer Test if You Are Pulled Over for a Suspected DUI?
Yes, but only before your arrest. Not only can you refuse a PAS at the scene when you are pulled over, but you can also refuse to participate in any other field sobriety testing. In fact, you should refuse any attempts by an officer to subject you to a breathalyzer or other test if no arrest has been made.
In most instances, the reason the officers will ask you for these tests is to build their case for arrest and gather the probable cause necessary to arrest an individual for DUI. There is no penalty to refuse these tests before an arrest. However, this does not mean that an officer cannot still arrest you for DUI if they feel they have other evidence amounting to enough probable cause to justify the arrest.
Can You Refuse to Comply With the Chemical Testing During the Process of Your Arrest?
Unlike your right to refuse a breathalyzer test after being pulled over, you cannot refuse a chemical test for DUI purposes after you are placed under arrest by an officer. Vehicle Code 23612 specifically references the implied consent a driver in California has given to submit to this testing if they are arrested on suspicion of DUI. Failure to submit to the chemical test as requested by an officer during processing can result in consequences to you and have significant implications on your DUI case.
What Rights and Consequences Must a Police Officer Inform You of During an Arrest Relating to Chemical Testing?
As part of the statutory requirements of VC 23612, officers that conduct an arrest for suspicion of DUI have certain obligations they must meet to inform the individual under arrest of the laws pertaining to chemical tests after arrest and the potential consequences a driver may face by refusal of a chemical test.
The following must be communicated to a driver that is placed under arrest for DUI in California:
- You have a choice between blood or breath chemical testing. If an officer suspects that you are under the influence of drugs rather than alcohol, they can impose a blood test in addition to a breath test.
- You do not have a right to a lawyer during chemical testing. This step is part of the arrest process.
- If you refuse to submit to a chemical test, your act of refusal can be used against you as evidence in court regarding your DUI charges.
- If you are ultimately convicted of DUI, you will be subject to mandatory fines and jail time for your refusal to submit to chemical testing as part of your arrest and in violation of your implied consent under the law.
- Your refusal of a chemical test after arrest will result in the suspension of your driver’s license. The length of time for your suspension will depend on how many prior DUIs are on your record.
If You Agree to a PAS, Can You Avoid Chemical Testing During an Arrest?
No, there is no way around the chemical test under California law once you are placed under arrest for suspicion of DUI. Do not subject yourself to a PAS thinking this can ultimately help you avoid a chemical test. PAS is often inaccurate and, if anything, can result in higher readings than a chemical test.
When Can You Contact an Attorney If You Are Arrested for DUI?
An arrest for the suspicion of driving under the influence can be a stressful and difficult experience. If you also refuse a chemical test as part of your arrest, it may add to the challenges of your arrest and you may be at risk of significant effects on your record and future for both a DUI charge and a charge for refusal of a chemical test. It is in your best interest to seek the help of an experienced DUI attorney as soon as possible after you are arrested for DUI.
After a DUI Arrest, Contact the Los Angeles DUI Attorney
DUI cases can move rather quickly and depending on the circumstances of your arrest, your prior record, and other factors, you can be subject to hefty fines and a lengthy jail sentence. A DUI attorney can help you fight and protect your rights in a DUI case. Contact a Los Angeles DUI attorney for a free case evaluation to see how we can help you.