Many California residents are unaware of the state’s “implied consent” law. Essentially, by obtaining a driver’s license in California, you agree to comply with all of the state’s rules of the road—including the laws against driving under the influence (CA Vehicle Code Section 23152). Therefore, if you are suspected of driving under the influence, you are legally required to submit to chemical testing, be it a breathalyzer, blood test, or urine test.
However, there is an important distinction to make regarding when the chemical test is administered:
Prior to Arrest
When you are initially pulled over and suspected of driving under the influence, so long as you are of legal age and not on probation for a prior DUI, you have the right to refuse a breathalyzer or field sobriety test. Taking the breathalyzer or field sobriety test is your choice, and the officer should say so. However, it is important to keep in mind that this refusal will probably not make matters any better. As long as the officer has some other reason to suspect that you are under the influence (i.e. slurred speech, difficulty staying in one lane, etc.), he or she has probable cause to arrest you for driving under the influence.
In other words, it is well within your right to refuse a breathalyzer when you are first pulled over, but your refusal might not do you very much good.
If you are officially arrested and taken to the police station, things change. This is where California’s implied consent laws take hold; by obtaining a driver’s license, you consent to obeying the rules of the road and submitting to chemical tests administered by the police.
Once you have been arrested, the officer can ask you to take a breathalyzer, urine test, or blood test to check your alcohol level. If you refuse to take the test, you can face a number of penalties under California law (and your arresting officer should tell you so). The penalties for refusing a chemical DUI test are:
- First offense: Suspension of driver’s license for up to 1 year, jail time up to 48 hours, and 9 months of alcohol education courses
- Second offense: Suspension of driver’s license for up to 2 years, jail time up to 96 hours, and 9 months of alcohol education courses
- Third offense: Suspension of driver’s license for up to 3 years, jail time up to 10 days
In addition to the penalties listed above (and the penalties for the DUI itself), you could face a fine for each refusal.
At the end of the day, refusing to take a breathalyzer test will probably not do your case much good. It is well within your right to refuse an on-scene sobriety test, but if you are arrested, you could face serious penalties for refusing to cooperate with police. Plus, even if you avoid taking a sobriety test whatsoever, the prosecution in your case can use your refusal against you by saying you refused the test because you knew you were intoxicated.