In most cases, you can refuse the Breathalyzer as a passenger. DUI laws only apply to the person who is driving, and if you were not in control of the vehicle then police should not even ask you for a breath test. If they do, and you have not been arrested for DUI, you have the right to refuse.
(This applies to the roadside breath test known as the PAS. If you have been arrested for DUI and asked to take a breath test at the police station, you are legally required to comply, and there are penalties if you don’t. This is true for any DUI arrest, even if you claim you were not driving.)
However, the laws around breath tests are complex in California. Below we’ll cover the main things you need to know as a passenger in a vehicle when alcohol is involved.
- The legality of riding with a drunk driver
- Why police would suspect you of DUI when you’re not driving
- Situations where passengers do have to submit to a breath test
- What you can be charged with as a passenger
Is it illegal to ride with a drunk driver?
No. There is nothing in California’s statutes that makes it illegal to be a passenger in a vehicle with a drunk driver, although it is unsafe. But that doesn’t mean officers will look kindly on you if caught in this situation. If you are also intoxicated, they may seek some other grounds on which to issue you a citation. If you are sober, they may ask why you didn’t volunteer to drive, given that your friend is intoxicated. In many cases these questions are designed to trick you into incriminating the driver. Remember that you can politely decline to answer questions.
Why would police suspect me of DUI if I’m not the one driving?
This usually happens in one of three circumstances:
- Police aren’t sure who was really driving
- Your friend was driving, but you are the owner of the vehicle
- Police have some reason to suspect that you were driving and “switched seats” with the other person
In the context of a DUI arrest, you could be considered a “driver” even if you simply had your hand on the wheel. If you briefly steadied the wheel for the driver or took control of the vehicle in any way, and you are intoxicated, you could be arrested for DUI.
Similarly, if you have a suspended license, police may wonder if you were driving but then swapped places with the other person. This is especially true if the vehicle is registered in your name. There is nothing illegal about riding in a vehicle you own with someone else as the driver; again, you do not have to answer questions about this.
When is a passenger required to submit to a breath test?
There are two main circumstances where you could be required to take a preliminary breath test (PAS):
- If you are currently on DUI probation, or if you’re on any probation with a no-drinking requirement. These probation terms typically include a requirement that you will submit to an alcohol test when asked by an officer. If you do not, even as a passenger, you are breaking your probation and can face arrest and penalties.
- If you are under 21. Anyone under the legal drinking age is required to submit to a breath test if suspected of any alcohol-related offense, which includes underage drinking as well as DUI.
If you are in one of these two groups the breath test is not optional. However, DUI defense lawyers know how to challenge breath test results and may be able to get this evidence suppressed in your case.
What laws can police charge passengers with breaking?
Police will often ask passengers to take a breath test even though they know none of the passengers were driving. This allows them to look for other infractions and misdemeanors to charge you with. If you take the test and it reveals you were drinking, police could charge you with:
- Underage drinking (if under 21)
- Public intoxication in some cases
- DUI, if they claim that you had control of the vehicle
Have you been charged with DUI? We can connect you with an experienced Los Angeles DUI lawyer and get you a FREE consultation. Fill out the form to the right or call (310) 896-2724 and get your free consultation today.