Many people are confused about whether they’re required to give a breath sample following a California DUI stop. Unfortunately, the answer is not as simple as “yes” or “no.”
There are two different breathalyzers that a person can submit to during a California DUI arrest. Although I use the word “breathalyzer” interchangeably, the two are very different in that one of them you do not need to submit to and the other, you do.
The preliminary alcohol screening (PAS) test is considered a field sobriety test, the purpose of which is to determine whether there is probable cause to believe that the driver is actually driving drunk. Like the other field sobriety tests, it is optional. And like the other field sobriety tests, you have a right not to submit to it.
The California Vehicle Code requires that officers advise a driver that they do not need to provide a breath sample for the PAS test.
If and when the arresting officer has probable cause to believe a driver is driving drunk, they may make a DUI arrest.
Only after a lawful DUI arrest must a person submit to a chemical test. This is known as California’s Implied Consent Law.
California Vehicle Code section 23612(a)(1)(A) reads, “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 alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”
The chemical test can either be a breath or a blood test. Like the PAS test, an officer must advise the now DUI suspect that they must submit to a chemical test and that the chemical test can either be a breath or a blood test.
If a DUI suspect does not want to give a blood test, then they must give a post-arrest breath test. Refusal to submit to a chemical test can subject a driver to addition penalties through both the court and the California DMV.