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Do I have to take a chemical test after a DUI arrest?

There is some confusion about whether a chemical test is required in a DUI case. There are some preliminary tests which police ask drivers to perform before an arrest. These pre-arrest tests are not required and drivers have the right to refuse these tests.

However, chemical tests after an arrest (often at a jail or police station) are required. Drivers can face a mandatory license suspension for refusing a chemical test. In some cases, the police may even get a warrant to draw blood from a suspect.

It is important to understand your rights in a DUI arrest and the consequences for providing or refusing a chemical test.

Can I refuse a roadside breathalyzer test in California? 

A preliminary alcohol screening (PAS) device is a small, portable breath testing machine, sometimes called a handheld breathalyzer. These machines are used during a traffic stop where the police are trying to determine if they have probable cause to make a DUI arrest.

PAS breath test results are not always used in criminal cases. However, although police officers often say they are only another field sobriety test courts may often admit the results in specific instances.

If you are on probation for a DUI offense or if you are under 21, you may be required to take a PAS test

A roadside breath test is NOT the same as a breath test after a DUI arrest.

As long as you aren't on DUI probation or under 21, a driver can refuse a PAS breath test. There are no penalties for refusing a PAS test. In many cases, drivers can refuse a PAS test because they may be more likely to hurt your case than to help.

Can I refuse a chemical test after a DUI arrest in California?

A chemical test after a DUI arrest is required. Drivers face a penalty for refusing a chemical breath, blood, or urine test after a DUI arrest. Refusing a chemical test may mean the prosecutor does not have evidence of the driver's alcohol level but the courts allow a negative inference to be made from refusing a chemical test. You can still be convicted of a DUI even if you refuse a chemical test. Police can, however, get a warrant and have blood drawn for testing even if you have refused to take a test.

What is the “implied consent” law in California?

California's “implied consent” law provides that drivers have impliedly given consent to a chemical test sample after a drunk driving arrest. Drivers do not have to expressly consent to this law. By driving in California, you have impliedly given consent to provide a chemical test sample if you are ever arrested for a DUI.

The consequences of refusing to give a chemical test sample are losing your license.

  • 1st refusal: one-year suspension of your driver's license.
  • Refusal after prior DUI or subsequent refusal: two-year suspension.
  • Refusal after 2 prior DUIs or subsequent refusals: three-year suspension.

The DMV has to prove that the officer had reasonable cause to believe you were DUI, that you were lawfully arrested, that you were properly advised about the requirements of taking a chemical test and that you refused. There are defenses to these issues that must be analyzed by an experienced attorney.

Do I have to give a blood or urine sample?

When arrested on suspicion of driving under the influence of alcohol, police generally take a breath test. If the police suspect the driver may be under the influence of drugs or a combination of drugs and alcohol, they may use a blood test or urine test.

Refusing to provide a blood or urine sample is treated as a refusal and can lead to an automatic one-year license suspension.

Can I get my own chemical test after a DUI arrest?

An independent test of your blood after arrest and release from custody generally does not assist your case for an alcohol-related DUI. However, if your arrest involves drugs only, there are times where an independent test can assist in the defense of your case. If you submitted to a blood test, you have a right to have the blood sample independently tested at another laboratory. Talk to your DUI defense lawyer about whether you may want an independent chemical test after a DUI.

Can I challenge the chemical test results in court?

After submitting a chemical test (blood, breath, or urine), there are still ways to fight the use of those chemical test results in court. When the police or healthcare workers who took the chemical test sample do not follow the rules, the chemical test evidence could be unreliable. Your attorney should be trained in the analysis of all chemical testing.

Your DUI defense lawyer can file a motion to suppress any unreliable evidence on the basis of machine error, human error, contamination, or other reasons that may have violated your rights. Lynn Gorelick has been trained in the analysis of blood samples and breath testing

East Bay DUI Attorney Challenging Chemical Test Results

Experienced East Bay criminal defense attorney Lynn Gorelick has more than 35 years experience handling DUI cases in California and understands how to challenge the prosecutor for the best results, including getting a not guilty verdict or having criminal charges dropped. Contact East Bay DUI lawyer Lynn Gorelick today.

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