During a traffic stop or after a DUI arrest, the police may ask you to give a breath or blood sample. It is important to know your rights when asked for a chemical test sample and to understand the consequences of refusing a chemical test. If you have any questions, contact East Bay criminal defense attorney Lynn Gorelick today.
Can I refuse a breath test during a traffic stop?
A breath test during a traffic stop is known as a preliminary alcohol screening (PAS). This involves a handheld breath testing device, sometimes called a breathalyzer. Police use these PAS tests to support their probable cause for making a DUI arrest. However, these tests are not used as evidence in a criminal DUI case.
You have the right to refuse a breath test during a traffic stop. There are no penalties or legal consequences for refusing a PAS breath test. There is little benefit to giving a roadside breath test. These tests can be unreliable and inaccurate. A PAS test can show a driver is above the legal limit even if the driver's actual blood alcohol concentration (BAC) is much lower. However, if you are on DUI Probation or are under 21, you may have to submit to a PAS test.
Can I refuse a chemical test after a DUI arrest?
Drivers are required to provide a chemical test after a DUI arrest. This is different from a roadside breath test. Under California's “implied consent” laws, drivers are considered to have given consent to provide a breath, blood, or urine sample after an arrest for driving under the influence of alcohol or drugs.
Most drivers are surprised to learn that they have impliedly agreed to give a chemical test sample as a condition of driving in California. Under California Vehicle Code 23612, “a person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood if lawfully arrested for [a DUI].”
Generally, if the driver is suspected of driving under the influence of alcohol, the driver may have a choice between providing a breath sample or blood sample. However, if the driver is suspected of driving under the influence of drugs (or a combination of drugs and alcohol), the officer may require a blood sample. If the driver cannot provide a blood sample, the police may take a urine sample.
What happens if I refuse to give a breath or blood sample?
There are penalties for refusing to give a breath or blood sample after a DUI arrest. Drivers in Contra Costa or Alameda County will face a 1-year license suspension from the DMV for refusing a chemical test. Even if the driver is never convicted of a DUI or the driver is totally sober, refusing a chemical test after a DUI arrest can result in a license suspension of 1 year, 2 years or 3 years if the person has prior convictions.
A second refusal within 10 years can result in a 2-year license suspension. The third or subsequent chemical sample refusal within 10 years can result in a 3-year driver's license suspension.
If I don't give a blood or breath sample, will I automatically win my case?
Some people assume that if they never give a blood or breath sample, the prosecutor will not have any evidence of the driver's BAC and there will be no case. This is not the case in California DUI cases. A refusal to submit to a test can be used against the driver in court. The prosecutor can still charge a driver with a DUI even without a chemical test. The police can request a warrant from a judge and draw blood without consent. So, even if you refuse to take a test, they may still draw your blood and have a test result to use against you.
Is there a way to challenge chemical test results?
There are ways to challenge chemical test results in court. Consent to take a test is always an issue. Law enforcement and healthcare professionals are required to take certain steps when taking breath or blood samples. When they don't follow the rules, they may be violating your rights.
Chemical tests can be unreliable due to human error, contamination, mixing up samples, failing to clean or calibrate testing devices, or other factors. Your DUI defense lawyer can challenge the chemical test results in court to get the evidence thrown out or make a jury question the reliability of the tests.
Alameda County DUI Defense Lawyer
East Bay attorney Lynn Gorelick has more than 30 years of DUI experience and understands the consequences for drivers arrested on suspicion of drunk driving. She understands how to approach the individual facts of each case for the greatest chance of success, keeping her clients out of jail and driving on the road. Lynn Gorelick is familiar with the local DUI laws, and the local officers and prosecutors involved. Contact East Bay DUI lawyer Lynn Gorelick today.