Police officers can ask individuals to complete a breathalyzer test during a traffic stop. Can you refuse a breathalyzer if you’re not driving at the time of the stop? In most cases, you can refuse the breathalyzer as a passenger.
However, California has complex laws on driving under the influence (DUI), and you may have to submit to a blood alcohol content (BAC) test even as a passenger if you are under the age of 21 or on DUI probation.
Learn more about these requirements from a Los Angeles DUI lawyer. Call or complete our online contact form to get additional information.
When Can You Refuse a Breathalyzer Test if You’re Not Driving?
You can usually refuse a blood alcohol concentration test if you’re riding in a vehicle as a passenger. Only a driver has to follow DUI laws. Police officers shouldn’t ask you to complete a breath test as a passenger.
If they request the test but they haven’t arrested you for a DUI, you can legally refuse a preliminary alcohol screening (PAS) test in most circumstances.
Everyone arrested for a DUI must legally perform a BAC test if requested by the police. Implied consent laws (covered in Vehicle Code 23612) make it a crime to refuse a breathalyzer in California.
When Do You Have to Take a Breathalyzer as a Passenger?
There are two main circumstances where you could be required to take a preliminary breath test (PAS) as a passenger in a vehicle:
You Are on DUI Probation
If you are currently on DUI probation or any probation with a no-drinking requirement, you may have to take a breathalyzer. These probation terms typically require that you submit to an alcohol test when asked by a law enforcement officer.
If you refuse a test, even as a passenger, you are breaking your probation and can face arrest and penalties.
You Are Under 21
You have to take a breath test if you’re under 21 and the police suspect you of an alcohol-related offense. You may have to take a test if the police want to charge you with underage drinking or a DUI.
In this situation, you must comply with a police officer and may also have to take field sobriety tests. You can face penalties for refusing a breathalyzer test in California for declining in this situation.
However, DUI defense lawyers know how to challenge breath test results and may be able to suppress this evidence in your case.
What Charges Could You Face as a Passenger?
Police officers may ask passengers to take a breath test. This test allows them to look for other potential infractions and misdemeanor charges that could apply to their situation.
If you take the BAC test and it reveals elevated levels of alcohol in your blood, police could charge you with:
- Underage drinking (if under 21)
- Public intoxication, in some cases
- Driving under the influence of alcohol, if they believe you were driving
A criminal defense attorney can help you face these criminal charges head-on and may argue that the police exceeded their legal authority in forcing you to take these types of tests.
What Happens if You Get Convicted of a DUI Charge?
You may face legal penalties for any DUI adjacent charge in California. Depending on your situation, you may face a license suspension, fines, or jail time. Skilled attorneys can take steps to protect you from these charges.
An attorney may take steps to get your charges dismissed or reduced. You can discuss your legal options immediately after an arrest and find out if you can refuse a breathalyzer if you’re not driving.
Why Do the Police Suspect Passengers of Driving?
The police may suspect you of driving under the influence even if you’re a passenger if:
- They aren’t sure who was operating the vehicle
- Your friend was driving a car you own
- Police believe you swapped seats
The police may count you as a “driver” during a DUI arrest simply for having your hand on the wheel. You could face charges for briefly steadying the wheel for the driver while intoxicated. An officer could arrest you for a DUI in this situation.
Similarly, if you have a suspended license, police may wonder if you were driving but then swapped places with the other person, especially if you have the vehicle 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. Speak to a legal team before you discuss this situation.
Can You Face Charges for Driving with a Drunk Motorist?
California’s laws don’t qualify driving with an impaired driver as a crime. However, this action can put you in danger. Additionally, police officers often disapprove of everyone involved in drunk driving, even passengers.
Police officers may look for other reasons to arrest you if you’re riding with an impaired driver. They may ask why you failed to drive if you are sober. They may use these questions to try to get you to incriminate your friend.
Legally, you can politely decline to answer their questions and request to speak with a lawyer as part of your Constitutional rights.
Find Out if You Can Refuse a Breathalyzer if You’re Not Driving
Can you refuse a breathalyzer if you’re not driving a motor vehicle? Typically, you can decline a roadside breath test as a passenger. However, you may have to take these tests if you’re on DUI probation, under 21, or arrested for a DUI.
Refusal of a lawful test can have harsh legal consequences. You can discuss California’s DUI laws in more detail with a criminal defense lawyer. Our team can provide you with more information when you call or complete our online contact form.
