California has a policy of “implied consent” for DUI chemical tests. This means that you are required by law to take either a blood test, a breath test, or a urine test if arrested for DUI. If you refuse, you will still face the DUI charge, and you will also face additional penalties for “refusal.”
What is implied consent?
Implied consent is the idea that you agreed to the chemical test in advance. By driving on California’s roads, you are implicitly agreeing to California’s DUI rules. It is too late to refuse once you are arrested.
The policy of implied consent can seem unfair. Many people don’t like the idea that the government can force them to give up a sample of blood, breath or urine—which is effectively providing evidence against yourself. Unfortunately, this policy is long established and has been supported by the courts. It is the law. The best thing you can do during a DUI arrest is:
- Agree to the chemical test after you are arrested.
- If you have already refused it, speak to a lawyer about challenging the “refusal” charge.
- Make notes as soon as possible on how you were processed and what police said when they asked you to take the test. This information could help you challenge it.
Are there exceptions where I am allowed to refuse the chemical test?
Yes. If you have not yet been arrested, you are not required to submit to a breath test. Police will often ask you to take one during the traffic stop. This test is known as a PAS and it is optional in most cases. Unless you are under 21 or you are on DUI probation, you can politely decline this test.
Even after the arrest, certain requirements apply:
- Police need a warrant in order to conduct a blood test.
- You are allowed to request one type of test over another. For example, you can request a breath test instead of a blood test. However, if only one type of test is available, you must submit to it.
- Police must inform you that the test is required by law. If they fail to do this, your refusal does not count as refusal.
How do I fight a refusal charge?
There are specific tactics for fighting both a blood test refusal and a breath test refusal. Likewise, all refusal charges are open to challenge if you were not informed that refusal is illegal. But you need to understand that a DUI is much more serious when there is a refusal charge attached. The refusal will affect both your immediate license suspension hearing with the DMV and the criminal penalties you face. You need to speak to a lawyer to help you win your case.
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.