When you are arrested for DUI, you will be ordered to take either a blood or breath test. Refusing this test is a normal response, but unfortunately, it’s also illegal. This is because California law says that you agreed to take the test in advance—the day you got your driver’s license.
By refusing during your arrest, you are essentially breaking the law.
If you refuse a blood alcohol concentration (BAC) test, the penalties you are facing could be harsh. Get help avoiding the fallout of a guilty verdict by contacting an experienced Los Angeles DUI lawyer. You can discuss your potential defense strategies or the possibility of entering into a plea agreement with the state’s prosecuting attorney during your free consultation.
Types of Alcohol Testing
There are multiple types of testing you might need to undergo if you are suspected of a DUI. The first is a field sobriety test. This is not a type of chemical test, but rather an opportunity for police officers to observe your movements for impairment.
Police may ask you to follow your eyes with an object or walk in a straight line to determine whether you are under the influence of drugs or alcohol. It is important to know that you are under no legal obligation to participate in a field sobriety test.
You have the right to refuse such testing and will not face any criminal penalties as a result of your refusal. However, the same cannot be said for chemical blood alcohol testing.
Drivers who are under suspicion of driving under the influence of drugs or alcohol may be privy to California’s implied consent laws. Here, drivers are required to give their consent for chemical blood alcohol testing when they are suspected of a DUI.
There are multiple types of chemical blood-alcohol tests that may be available. These include breath tests and blood/urine/saliva tests. Although blood and breath tests may be most common, urine and saliva tests can provide valuable information to support the state’s prosecuting attorney’s case, including the exact substances that may be in a defendant’s system at any given time.
Also commonly referred to as breathalyzers, breath tests work by measuring the amount of alcohol that is contained in someone’s breath at that given moment. Using this measurement, the breathalyzer will determine what the individual’s blood alcohol concentration levels are. There are two primary types of breath tests: evidential breath tests (EBTs) and preliminary alcohol screening (PAS) tests.
In evidential breath tests, police will use a breathalyzer to determine a defendant’s BAC levels after an arrest has already occurred. Many of the EBT breathalyzer devices used by police are too large to carry while on regular patrols. However, EBT devices are generally considered to be significantly more accurate than other types of breathalyzer devices.
EBT device results are typically used to prove BAC levels in a defendant’s system. In preliminary alcohol screenings, police are more likely to give you a breathalyzer upon your stop prior to arresting you on suspicion of a DUI. You do have the right to refuse a PAS test.
PAS tests will typically only detect the presence of alcohol. They will not detect the amount of alcohol that is in a person’s system at any given time. This means PAS device results may not always be accurate and any PAS device results could be deemed inadmissible at trial against you.
Blood tests are some of the most common types of chemical alcohol testing. Breath tests may be used to detect alcohol, but a blood test can provide law enforcement with information regarding the specific types of drugs that may be in a defendant’s system upon their arrest. These tests may also take longer to process and may not be included in law enforcement’s initial police report.
Can Blood Samples Be Forced?
In the past, in some instances where a suspect was accused of a DUI, law enforcement officers would take a chemical blood alcohol sample, whether that be through urine, saliva, or blood without the accused party’s consent.
However, in 2013, the Supreme Court ruled that officers are not legally allowed to take forced blood samples in cases where DUI is suspected. Although there are some instances in which officers may be able to take a blood sample without a warrant or the individual’s consent, there must be special facts that apply for a forced blood sample to be admissible at a DUI trial.
For example, if a suspected drunk driver caused a motor vehicle accident and needed immediate medical attention, police may be able to obtain a sample of the suspect’s blood prior to being transported to a hospital for a medical evaluation.
Exceptions to CA Implied Consent Laws
The only exception to California implied consent laws is if you have a medical reason that you cannot take one of the tests. For example, if you have hemophilia and your blood does not clot normally, it would be dangerous for you to take a blood test.
But this just means you do not have to take the specific test that is dangerous for you. The hemophiliac, for example, would just be given the breath test instead.
What Happens When You Refuse a BAC Test?
If you refuse the test, the DUI sentence you face is steeper. It adds the following penalties to first, second, and third DUIs, respectively:
- 2 extra days in jail
- Mandatory 1-year license suspension
- 9-month DUI school (instead of the normal 3-month class)
- 96 additional hours in jail
- Mandatory 2-year license suspension
Third or Subsequent DUI:
- 10 extra days in jail
- Mandatory 3-year license suspension
Is It a Good Idea to Use Chemical Test Refusal as a Defense Strategy?
Many drivers are under the impression that if they refuse to submit to a chemical blood alcohol test, they may be able to avoid the fallout of a criminal conviction. However, refusing to submit to a chemical blood alcohol test will lead to an immediate license suspension.
This does not necessarily mean the state will not move forward with the DUI charges against you. If you are unsure whether refusing a chemical blood alcohol test is the right decision for your case before you make a decision, be sure to contact your criminal defense lawyer for legal guidance and support.
How to Challenge a BAC Test Refusal
However, just because you are charged with refusal does not mean it will hold up. A good DUI lawyer will work to see if the refusal can be challenged. The most common reason for this is when the police do not inform you of the consequences of refusal.
They are required to inform you when they instruct you to take the test. If they did not, the refusal will not hold up. It is also possible to get rid of the refusal as part of a plea bargain, which substantially reduces your sentence.
Pretrial Diversion Programs
You might also be able to enter into a pretrial diversion program with the state’s prosecuting attorney. Once you complete the terms of this program, the charges against you could be reduced or dismissed entirely. Some of these terms could include:
- Completion of court-ordered drug or alcohol treatment
- Completion of driver retraining
- Attendance at mental health counseling or therapy
- Community service hours
- Random drug and alcohol testing
- Random searches of your personal property
- Completion of court-ordered anger management
- Fines and restitution
If your lawyer makes it clear that they are prepared to fight every step of the way, the prosecutor may offer to remove the refusal charge in order to avoid a prolonged court process.
Contact a Los Angeles DUI Lawyer for Help Today
If you refused to take the blood or breath test, it is essential that you speak to an experienced DUI lawyer. We have built a network of top DUI attorneys that will offer you a FREE consultation on your case. Are you ready to schedule your confidential case evaluation?