BREATH AND FIELD SOBRIETY TESTS
California law requires you to take a breath or blood test if you are arrested for a DUI. California’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence of alcohol or drugs, then you consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC). The test must be taken at the time of your arrest, and the officer should give you the choice between a blood or breath test. If neither blood nor breath tests are available, then you have to take a urine test. The law also gives a special exemption for people taking anticoagulants for a heart condition or who have hemophilia – they don’t have to take the blood test.
Additionally, California’s implied consent law says that you consent to taking a preliminary breath test, even if you have not been arrested. This works like a field sobriety test. The preliminary alcohol-screening (PAS) test is used by law enforcement to measure your blood alcohol level. The PAS device is a hand-held breath-testing unit that gives an instant and accurate measure of your blood alcohol concentration. The officer will use the results to establish probable cause that you were driving under the influence. You do not have to take this preliminary test, and the officer should say so. Refusing it, however, probably won’t work in your favor if the officer has some other reason to think you had been drinking. Based on that other reason, the officer could still arrest you and then you will be required to take a test under the law described in the paragraph above.
If you are arrested, the officer should tell you that if you refuse to take the test, you will be fined, will lose your license, and that you could be sent to jail if you are later convicted of a DUI. Also, the officer shall advise you that you don’t have the right to speak to an attorney about whether you should take the test and in fact your refusal can be used against you in a court of law. You can read California’s implied consent law in the
Title 17 of the California Code of Regulations sets forth the rules that police must follow in connection with DUI breath tests.
These rules include (but are not limited to):
Many people have lost their licenses because they did not understand this critical distinction. Because the decision to take or refuse the breath test has serious consequences, the law provides that you must be officially "reminded" of the consequences of your decision. The officer reads a form and you are then asked to make your decision regarding the test. The form is difficult to understand, especially if you are hearing it for the first time. Keep in mind that at the time the officer is reading it, you have been arrested, handcuffed and taken to jail, probably for the first time in your life. For most people, the shock of the arrest makes it very difficult to appreciate the fine legal distinctions presented by the Implied Consent Warning. It is no surprise that many people under arrest for DUI exercise the right to call an attorney for advice before making any decision regarding the breath test. The Implied Consent Warning form does not tell you several important facts: If you refuse the test, you will probably be prosecuted anyway and your refusal to take the test will likely be a cornerstone of the prosecutor's case. Also, if you refuse the test your license will be suspended/revoked and you will have to file proof of financial responsibility (otherwise known as "high risk" insurance) with the DMV, the same as if you had been convicted of DUI. Any person facing the decision to take or refuse the breath test should call an attorney immediately to discuss the consequences of that decision in connection with the specific facts of the case. Generally speaking, however, the consequences of refusing a test are more severe than taking it and flunking. If a person under arrest with no prior DUI convictions and no prior (within ten years) DMV administrative actions takes a breath test with a result near or above the legal limit, which is .08 in California, the chances of being convicted are usually increased. If the test result is .08 or higher, the Department of Motor Vehicles will suspend the driver's license for 30 days administratively (before trial) and for an additional 90 days (minimum) if convicted of the DUI. The person may apply for a temporary restricted license after the first thirty days of the suspension have elapsed, as long as they are enrolled in a DUI program and have obtained an SR-22.
Refusing a breath test
In California, the penalties for refusing to take a blood, breath, or urine test begin with a one-year suspension of your license. You could lose your license for two years if this is your second refusal or if you already had a reckless-driving or DUI conviction within the last ten years. The penalty jumps to a three-year suspension for your third refusal or if you have had more than one reckless-driving or DUI conviction within ten years. The fine is the same – $125 – whether this is your first, second, or third refusal.
More on refusing a breath test >>>
California law requires you to take a breath or blood test if you are arrested for a DUI. California’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence of alcohol or drugs, then you consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC). The test must be taken at the time of your arrest, and the officer should give you the choice between a blood or breath test. If neither blood nor breath tests are available, then you have to take a urine test. The law also gives a special exemption for people taking anticoagulants for a heart condition or who have hemophilia – they don’t have to take the blood test.
Additionally, California’s implied consent law says that you consent to taking a preliminary breath test, even if you have not been arrested. This works like a field sobriety test. The preliminary alcohol-screening (PAS) test is used by law enforcement to measure your blood alcohol level. The PAS device is a hand-held breath-testing unit that gives an instant and accurate measure of your blood alcohol concentration. The officer will use the results to establish probable cause that you were driving under the influence. You do not have to take this preliminary test, and the officer should say so. Refusing it, however, probably won’t work in your favor if the officer has some other reason to think you had been drinking. Based on that other reason, the officer could still arrest you and then you will be required to take a test under the law described in the paragraph above.
If you are arrested, the officer should tell you that if you refuse to take the test, you will be fined, will lose your license, and that you could be sent to jail if you are later convicted of a DUI. Also, the officer shall advise you that you don’t have the right to speak to an attorney about whether you should take the test and in fact your refusal can be used against you in a court of law. You can read California’s implied consent law in the
Title 17 of the California Code of Regulations sets forth the rules that police must follow in connection with DUI breath tests.
These rules include (but are not limited to):
- use of only California-approved DUI breath testing devices,
- regular calibration and testing of such devices,
- proper training of persons administering the DUI breath test,
- a 15-minute continuous observation period before the test is started (during which time you must not eat, drink, smoke or vomit),
- the operator obtaining two separate breath test results which differ by no more than 0.02 grams per 100 milliliters of blood alcohol, and
- proper record keeping at each stage of instrument calibration, the arrest, and the breath test.
Many people have lost their licenses because they did not understand this critical distinction. Because the decision to take or refuse the breath test has serious consequences, the law provides that you must be officially "reminded" of the consequences of your decision. The officer reads a form and you are then asked to make your decision regarding the test. The form is difficult to understand, especially if you are hearing it for the first time. Keep in mind that at the time the officer is reading it, you have been arrested, handcuffed and taken to jail, probably for the first time in your life. For most people, the shock of the arrest makes it very difficult to appreciate the fine legal distinctions presented by the Implied Consent Warning. It is no surprise that many people under arrest for DUI exercise the right to call an attorney for advice before making any decision regarding the breath test. The Implied Consent Warning form does not tell you several important facts: If you refuse the test, you will probably be prosecuted anyway and your refusal to take the test will likely be a cornerstone of the prosecutor's case. Also, if you refuse the test your license will be suspended/revoked and you will have to file proof of financial responsibility (otherwise known as "high risk" insurance) with the DMV, the same as if you had been convicted of DUI. Any person facing the decision to take or refuse the breath test should call an attorney immediately to discuss the consequences of that decision in connection with the specific facts of the case. Generally speaking, however, the consequences of refusing a test are more severe than taking it and flunking. If a person under arrest with no prior DUI convictions and no prior (within ten years) DMV administrative actions takes a breath test with a result near or above the legal limit, which is .08 in California, the chances of being convicted are usually increased. If the test result is .08 or higher, the Department of Motor Vehicles will suspend the driver's license for 30 days administratively (before trial) and for an additional 90 days (minimum) if convicted of the DUI. The person may apply for a temporary restricted license after the first thirty days of the suspension have elapsed, as long as they are enrolled in a DUI program and have obtained an SR-22.
Refusing a breath test
In California, the penalties for refusing to take a blood, breath, or urine test begin with a one-year suspension of your license. You could lose your license for two years if this is your second refusal or if you already had a reckless-driving or DUI conviction within the last ten years. The penalty jumps to a three-year suspension for your third refusal or if you have had more than one reckless-driving or DUI conviction within ten years. The fine is the same – $125 – whether this is your first, second, or third refusal.
More on refusing a breath test >>>