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Refusing the Breathalyzer


Many of my clients are under the impression that they can refuse breathalyzers and doing so will just help their DUI defense. They’re partly correct and partly incorrect.

California has what is called “the implied consent law.” When a person obtains a license to operate a motor vehicle in California, they impliedly agree to abide by California Vehicle Code section 23162. California Vehicle Code section 23162 state in pertinent part, “A person who drives a motor vehicle is deems to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her breath, if lawfully arrested…”

In other words, when a person accepts a driver’s license, they impliedly agree that if they are lawfully arrested on suspicion of driving under the influence, they must agree to submit to a test of their blood or breath to determine their alcohol content.

However, having said that, the law only applies once a person is lawfully arrested for a DUI. This means that, until that point, a person can refuse the breathalyzer known as a PAS devise (preliminary alcohol screening device). Don’t do it. You’re just giving law enforcement more evidence against you.

If the officer is able to obtain probable cause to arrest you on suspicion of driving under the influence, either through the PAS device, field sobriety tests, or other observations, you must submit to a chemical test. The chemical test can either be a breath or a blood test.

Once arrested, law enforcement is required to warn a DUI suspect of the consequences of refusing a chemical test. A refusal of the required chemical test can increased the amount of time that a license is suspended by the DMV. Exactly how the officer informs the DUI suspect of the consequences of a chemical test refusal is important in fighting to save a license from a DMV suspension.

Let me say it again: Don’t submit to breathalyzer unless you are already arrested for a DUI. Then, and only then, must you submit to either a breath of blood test.

The post Refusing the Breathalyzer appeared first on Law Offices of Taylor and Taylor - DUI Central.

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