Refusing A Chemical Test, Breath or Blood In A California DUI

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In California, you are required by law to take a chemical test after your lawful arrest to determine the amount of alcohol in your system.  California’s “Implied Consent Law” requires you to submit to chemical testing if you are arrested for driving under the influence and the arresting officer has probable cause to believe you are driving under the influence.1

What Types of Chemical Tests Can Be Administered In A DUI?

In addition to field sobriety tests, chemical tests are one of the most common tests that police officers use to identify driving under the influence, both pre- and post-arrest, and include the following types of tests:

In the event that you are lawfully arrested for a DUI, you are bound by law to allow the police officer to administer a chemical test to determine your BAC.2

After a chemical test, the officer would likely issue an immediate suspension or revocation of your drivers’ license.  The police officer must then submit a sworn statement that you were driving under the influence and that he had probable cause for your arrest.  You will be notified if the suspension and revocation is upheld.

The additional penalties for a first time DUI offender for refusing to take a chemical test include a fine, mandatory imprisonment in a county jail if convicted, suspension of your drivers’ license for one year with no restricted license privilege, and a 9 month alcohol education program.  A second DUI offense resulting in refusing a chemical test will result in extra jail time and a two-year license revocation.  If it was your third arrest for a DUI with two prior convictions, refusal to take a chemical test will result in longer mandatory jail time and a three-year license revocation.3

Whether or not you believe the arrest to be lawful, you must still submit to a breath or blood chemical test after you have been arrested for driving under the influence.  If you believe that the police officer did not have probable cause then your attorney will use this as a defense during your case and attempt to get the charges dropped.

Chemical Test Refusal FAQs

man taking a dui breath test
1) If I am pulled over on suspicion of drunk driving but have not been arrested yet, do I have to submit to chemical testing?

No. A pre-arrest chemical test is called a Preliminary Alcohol Screening (PAS).  Unless you are a driver under 21 pulled over for a DUI or on probation from a prior DUI conviction, a PAS is just another field sobriety test and you will not face consequences for refusing to take it.  However, if you are pulled over and then arrested, a refusal of a post-arrest chemical test will result in additional penalties if you are convicted.  Refusal of a PAS cannot be used in your criminal case as evidence of driving under the influence.  However, if you do submit to a PAS, the results can and will be used in your case as evidence that you were driving under the influence.

2) What happens if I was not notified by the police officer that my refusal would lead to additional penalties if I were convicted?

Under California’s Vehicle Code 23612, you must be notified of the consequences of refusing to take a chemical test after arrest.  If you were not advised, or not properly admonished, of the consequences, you will have a strong defense to have your refusal excused.

3) Can I still get a restricted license if I refused chemical testing?

If you are convicted of refusing a chemical test, you are violating the state’s implied consent law and do not qualify for a restricted license whether it is your first offense or third offense.

4) I have heard that breath tests can be inaccurate; am I allowed to choose which chemical test to take?

You are permitted to request a blood test over a breath test at any point.  However, a urine test is only available in limited circumstances.  If the police officer has probable cause to believe you have ingested drugs, he has the right to take a blood test from you even if you request just a breath test.  The police are then required to save a sample of your blood so that you may test it independently.

5) My refusal to take the chemical test was involuntary because I was incapacitated. Can that still be used against me?

If you are incapacitated because of bodily injury such as head trauma, epilepsy, etc., your failure to take a chemical test will be excused.  Note that your incapacitation may not be a result of choice.  Choosing to drink or take drugs and becoming incapacitated from that activity is not a valid excuse for failing to take a chemical test.

6) Will I absolutely be convicted of DUI if I refused the chemical test?

While refusing a chemical test provides for an enhancement in a DUI, it also presents a situation where the prosecutor is working with less evidence.  Therefore refusal cases can sometimes be plea bargained down to a wet reckless or an exhibition of speed.  However, a dismissal of the DUI in the criminal court does not preclude the DMV from suspending your license if you are unsuccessful in a DMV hearing.  Additionally the prosecutor may strike the refusal enhancement for the purposes of sentencing so that you are not bound by the enhancement penalties.  This also does not alleviate the DMV consequences should you be unsuccessful in your DMV hearing.

7) Will the prosecutor be able to use my refusal against me in a trial?

Yes.  There is a jury instruction in the California Criminal Jury Instructions that allows the prosecutor to argue that refusal to take the chemical test constitutes a consciousness of guilt.  This may lead the jury to believe that the reason you refused was because you had something to hide.4

8) What if I remained silent when asked which test I preferred to take?

This will constitute as a refusal in the eyes of the DMV.  Failure to respond to the question of which test you would like to take after a proper DUI arrest will result in the refusal enhancement penalties after an unsuccessful DMV hearing.

9) What if I tried to blow but the machine didn’t register a reading and I declined the blood test?

The police will likely write in their report that you were purposely not providing a sufficient breath sample for the breath machine and by declining the blood test, you will be deemed to have refused by the DMV.  This can, however be argued in court as a lack of sufficient facts to sustain a refusal.  Because the criminal proceeding has a higher standard of proof (beyond a reasonable doubt), a prosecutor may be more likely to consider reducing your charges or in the alternative you may make a successful argument to a jury that you did not refuse.

10) If I am convicted of DUI and I refused the chemical test, will I absolutely face jail time?

Not necessarily.  There are many alternatives that prosecutors will consider in lieu of jail.  The Secure Remote Alcohol Monitoring Device (SCRAM), is one way to negotiate around jail.  The SCRAM device measures the alcohol in your sweat and will notify the prosecutor when you consume alcohol.  In lieu of jail, your attorney may negotiate that you will not consume any measurable amount of alcohol and verify this by having you wear a SCRAM device.

Hiring An Attorney

The state of California has implemented some of the nation’s harshest DUI laws and if you get are arrested for a DUI, California has an implied consent law that requires you to submit to a chemical test.  Your refusal or failure to complete such a test can lead to additional penalties.  If you believe that the officer did not have reasonable cause to arrest you, it is important that you notify your attorney so that you can use this as a defense to your refusal to submit to a test.

Contact our offices at 818-351-9555 for a fee consultation.


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  1. California Vehicle Code 13353 []
  2. California Vehicle Code 23612 []
  3. Id []
  4. Cal Crim 2130 []