Can I Refuse a Breath Test?

California’s “implied consent” law governs all drivers on our roads. Essentially, this law states that by driving in California, you automatically consent to giving a blood or breath test should you be arrested on suspicion of driving under the influence. Some people simply don’t wish to give law enforcement evidence against them with which they can charge you with a DUI.

Some people are simply confused, knowing they are not required to submit to a test from the police, but often aren’t sure which one. You are not required to take a field sobriety test, which is something the police can use to determine probable cause to arrest you on suspicion of DUI. This only applies to field sobriety tests like walking in a line, it does not apply to an initial breath test, which officers may use to determine probable cause for an arrest. California’s implied consent law says you do consent to these tests, even though they are technically before your arrest. The big difference is these readings cannot be used against you as evidence in court because you were not yet arrested.

Unfortunately for these people, they will have violated the “implied consent” law and face additional consequences. In addition to the already heavy penalties for a DUI, your first conviction for refusing to take a blood or breath test will automatically levy a one-year license suspension, which you cannot appeal. You also will be ineligible to obtain a restricted license during this period. Even if you escape your DUI trial and hearing without consequences, you will still be subjected to this penalty. For a second offense of refusal, this suspension doubles to two years. A third offense nets a whopping three-year suspension without the ability to appeal or obtain a restricted license.

Furthermore, it likely doesn’t help their case all that much. The consequences for a DUI include at least four days in jail and fines of up to $1,000—those increase if you refuse to take the blood or breath test. Likewise, refusing the test does not guarantee that you have no case against you. You can be found guilty without evidence, and your prosecution will likely use your refusal to take the test as an argument against you in court. The court will consider this and it’s very likely that it could be used to convict you nonetheless.

If you have been arrested for DUI, the Law Offices of Mark Girdner may be able to help you. With considerable experience as a former Deputy District Attorney, our Modesto DUI lawyer can work with you to tailor your defense to directly fight the arguments against you in both your DUI trial and DMV hearing. We understand the importance the ability to drive has in your life, and we work hard to help you maintain your innocence and keep your license and record clean.