California allows police officers to request a breath test at two points during a DUI case:
- Before arrest, during the traffic stop. This is known as the PAS test and it is optional. You can refuse it with no penalty.
- After arrest, as part of your processing. This is the formal breath test and it is required by law. If you refuse it you can face extra consequences.
Once arrested for DUI, if you refuse the breath test you will be charged with an additional offense—“refusal”—and you will face extra penalties along with your DUI penalties. These extra penalties include:
- Extra jail time
- A longer license suspension period
In other words, a DUI conviction is “worse” for someone who refused the breath test than it is for someone who complied. However, just because you are charged with refusal and DUI does not mean you will be convicted.
Penalties for Refusing the Breath Test
The exact penalties depend on whether it’s your first DUI or a subsequent DUI. They are:
- First DUI in 10 Years: 48 extra hours of jail and a 1 year license suspension
- Second DUI: 96 extra hours of jail and a 2 year license revocation
- Third DUI: 10 extra days in jail and a 3 year license revocation
- Fourth or subsequent DUI: 18 extra days in jail and a 3 year license revocation
Additionally, first time DUI offenders will also have to complete an extra 6 months of DUI school.
First time DUI drivers, in particular, run afoul of the refusal penalties. Many drivers do not realize they are required to take the test, and the added penalties are especially tough on first time offenders. For example, a typical first time DUI offender could expect to face only a few months of license suspension, 3 months of DUI school, and potentially no jail time if they complete probation. But with refusal added on, the same driver loses their license for a whole year, spends 9 months in DUI school, and has to serve jail time. It’s a dramatic difference.
What do I do if I refused the breath test?
It’s very important that you schedule a consultation with a DUI defense lawyer and discuss your options. DUI lawyers routinely defend refusal charges. Ironically, although refusal itself is illegal, it may be easier for a lawyer to win your case for you because there is no breath test evidence against you. They may also find grounds on which to fight the refusal itself, since police may not have followed procedure or advised you that it was required.
In many cases, DUI suspects who refused the test walk free of all charges.
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