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Do I Have to Take a Breath Test or Breathalyzer?

You do not have to take a roadside breath test or preliminary alcohol screening device (PAS) during a traffic stop, even if the police officer makes it seem like you should. However, if you are arrested on suspicion of driving under the influence (DUI), you have to submit a chemical breath or blood test or face a mandatory license suspension.

It is important to note that, if you are on DUI Probation or are under 21 years of age, you do not have a right to refuse the roadside PAS test.  Refusal of the PAS in these circumstances can lead to driver's license suspensions.

If you are arrested, you may still refuse a chemical breath test after a DUI arrest but the consequences of a breath test refusal can include a mandatory 1-year license suspension, or more if you have prior convictions, even if you were not even intoxicated. It is important to understand the difference between a breath test on the scene of and during a traffic stop and one at the police station.

If you are arrested for drunk driving in Walnut Creek, Oakland, Dublin, Fremont or anywhere in the East Bay, contact the experienced California DUI lawyer Lynn Gorelick today.

Preliminary Alcohol Screening Device Tests

The preliminary alcohol screening (PAS) device, is the portable breath tester, sometimes referred to as a breathalyzer, that police use during a traffic stop. These devices are handheld so that police officers can use them in the field. However, a PAS is also not as accurate as other chemical testing devices. This can lead to inaccurate blood alcohol content (BAC) results.

A driver's BAC is an important measurement in California DUIs. Drivers with a BAC of 0.08% or higher can be charged with a DUI per se. A per se DUI means a driver can be convicted simply for having a BAC over the limit, even if the driver does not appear impaired, did not break any traffic laws, or passed all field sobriety tests.

If you don't have to take a PAS test, should you?  

It is up to you to decide whether you want to submit to a PAS breath test but since these tests can be unreliable, the police could use these test results to justify an arrest even if you are not drunk. Reasons for inaccurate PAS results could include:

  • Operator error,
  • Contamination,
  • Improper maintenance,
  • Lack of device calibration,
  • Medical issues, or even
  • Certain foods or gum.

Although the officers may say these tests are not used as evidence in court to show the driver's actual BAC, the results of the PAS can come in as evidence. Police often say that they are used to show the police officer had probable cause to make an arrest.  You have a choice to refuse these PAS tests.  

The police officer may make it seem like you should take the test or that they will somehow go easier on you if you submit a PAS breath sample. However, even if you blow a breath sample that is below the legal limit, the officer can still make an arrest on suspicion of driving under the influence of alcohol or drugs.

Implied Consent to Submit a Chemical Sample After a California DUI Arrest

Under California's “implied consent” law, drivers have given their consent to submitting to a chemical test after an arrest for a DUI. You may not have remembered giving your consent but your consent is implied by the fact that you were driving in California. Refusing a chemical test after a DUI arrest can lead to a mandatory suspension of your license, even if you are not drunk.

A first-time chemical test refusal results in a one-year license suspension. A 2nd refusal within 10 years results in a 2-year license suspension, and a 3-year license suspension after a 3rd refusal within 10 years.

A chemical test refusal could also result in increased penalties if you are convicted of a DUI, including mandatory minimum jail time and additional DUI school.

Chemical Breath Tests After Arrest Used as Evidence in Court  

Unlike the PAS or breathalyzer results, the chemical breath test sample after an arrest can be used as evidence of your BAC in court. For example, if the results are not challenged, the jury can consider a BAC of 0.08% or higher as evidence that the driver was driving under the influence. However, your California criminal defense lawyer can challenge the use or accuracy of these test results.

Challenging Chemical Test Results in California

Chemical test results can be challenged in court, including through a motion to suppress evidence. A motion to suppress DUI test results generally occurs before a trial begins and is determined by the judge. If the judge rules in favor of the motion to suppress evidence, the chemical test results may be barred from being used as evidence in court.

Depending on the case, if the prosecutor cannot use the chemical breath or blood tests, then the prosecutor may not have enough evidence to go forward with the case. The prosecutor may then drop the charges and the defendant will not even have to have their case go to trial.

Talk to your East Bay DUI defense attorney about your case and challenging the chemical test results. If you have been arrested on suspicion of a DUI or drug DUI in Contra Costa County or Alameda County, contact East Bay DUI lawyer Lynn Gorelick today.

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