The most important difference between these two tests is that in most cases you have the right to refuse a pre-arrest PAS test. If you have already been arrested for DUI, however, you do not have the right to refuse it, and refusal carries severe legal penalties of its own. But your refusal charge may not be accurate, and you can challenge the “refusal” claim.
When can I refuse a PAS test?
PAS tests are usually used before the arrest to help officers decide whether to arrest you or not. As long as you have not been arrested yet, you can refuse the test in most cases. The exceptions include:
- If you are under 21 and suspected of underage DUI, you cannot refuse the test
- If you are already on DUI probation
If neither of these factors apply to you, you may politely decline the PAS test.
Why is it illegal to refuse other breath tests?
The law views driving as a privilege, not a fundamental right. That means that the state can attach conditions to your ability to drive. In California, like in most states, one of these conditions is that you consent to a chemical test in the event you are arrested for DUI. In effect, you “agreed” to take the breath test the day you got your driver’s license.
These rules are strict. Officers only have to ask you to take the test once, and if you don’t comply, they can charge you with refusal. Refusal is a type of DUI sentence enhancement, meaning you will face much more serious consequences if you are convicted.
The consequences for refusing a DUI breath test include:
- 2, 4 or 10 extra days in jail
- A longer license suspension period—up to 3 years
- For a first time DUI, you will have to attend 9 months of DUI classes instead of 3 months
How do I challenge the refusal charge?
Police are often rushed for time and need to process you quickly. They also routinely deal with non-cooperative suspects. This means it’s very easy for police to see a “refusal” even when you never meant to refuse.
Here are examples of ways a refusal charge can be successfully challenged:
- Police told you to take the test, but did not explain the penalties for refusal
- You have a medical condition such as asthma, and you told the police this is why you couldn’t take the test
- You attempted to take the test but pain or a medical condition prevented you from blowing a usable breath sample
- You were injured or unconscious and couldn’t provide the sample (although being unconscious from drugs or alcohol does not count)
- You were attempting to request a different type of test, like a blood test, and you did not mean to refuse
A good DUI lawyer will draw on arrest records and your own medical records to build a case for one of these defenses. This can not only get the refusal charge dropped, it also changes the way the prosecution sees you and may help your DUI case as a whole.
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) 862-0199 and get your free consultation today.