Can You Refuse a Breathalyzer After Being Arrested for DUI?

If you are lawfully arrested for a DUI in California, you are required to take a Breathalyzer or blood test. You may get a longer jail sentence and/or a longer DUI class if you are convicted for both the DUI and refusing the Breathalyzer or blood test. Also, there is a mandatory driver’s license suspension whether you are found guilty or not of the DUI.

The requirement to take the Breathalyzer or blood test only applies after a lawful DUI arrest. You can still refuse to take a preliminary alcohol screening (PAS) breath test before an arrest takes place.

The most obvious indicator that you have been arrested for drunk driving is that the police officer will tell you that you are under arrest. This is usually followed by the officer placing you in handcuffs and moving you to the back of a patrol vehicle.

An officer’s brief holding and questioning is not an arrest, but is a detention.  A common example of a detention is an officer pulling over a driver for a traffic violation. The driver is not free to leave, but is also not under arrest. An arrest involves the police taking someone into custody through a more significant restraint on movement, often involving the use of handcuffs and telling you that you are under arrest.

Since you are only required to submit to a Breathalyzer or blood test after being under arrest, it is important to understand at what point you are under arrest. That way you know when you can still refuse a Breathalyzer or blood test and when refusing will lead to a driver’s license suspension or added penalties if you are convicted of a DUI.

This first test is the Preliminary Alcohol Screening (PAS) test and can be the very evidence that the officer needs to arrest you for drunk driving.

The Breathalyzer offered prior to arrest, called the Preliminary Alcohol Screening, is voluntary and should always be refused.

The second test, which occurs after you have been arrested, is mandatory.  If a driver refuses the post-arrest Breathalyzer or blood test, they will face the consequences of a refusal.

The officer must tell you of the requirement to take a blood or breath test and the consequences of refusing the test. When the officer tells you, this is known as the chemical test admonition, and it must include all the following:

• The driver may choose a breath or blood test and may be required to submit to blood testing if the officer believes the driver consumed drugs.

• The driver does not have the right to have an attorney present before deciding whether to submit, which test to submit to, or during the administration of the test itself.

• If the driver refuses to submit to a test, the refusal may be used in court.

• Failure to submit to testing will result in a fine and mandatory imprisonment if convicted of a DUI. 

• Failure to submit to testing will result in an automatic driver’s license suspension of one year or losing driving privileges for two or three years.

If the officer fails to tell you all of the above, then you may avoid the driver’s license suspension or additional penalties that come with refusing the blood or breath test.

Depending on the circumstances of the case, you may also be able to prevent use of the blood or breath sample at your DUI trial.

Yes, you still need to take the second test after being arrested. Taking the PAS test does not meet your requirement. This is why we recommend declining the PAS test. 

If there is not enough evidence for the officer to arrest you for DUI without the PAS test, the officer will be forced to let you be on your way.

Choosing between a DUI blood or breath test is a difficult decision that can call for a deep understanding of how the human body absorbs and eliminates alcohol, the issues around the accuracy and precision of the tests, and what you think your blood alcohol level might be.

Blood Tests

In general, blood tests are more accurate than breath tests. If you know you are likely well below the legal limit, then blood is better. Additionally, unlike breath tests which are conducted on scene by the police officer, a blood test usually takes place at the police station or jail and is performed by a phlebotomist. If you didn’t consume alcohol for some time prior to the driving, then the additional time needed to administer the blood test would likely lead to test results much lower than the actual blood alcohol level at the time of driving. 

A blood sample can be retested by your attorney at an independent lab. A breath test does not retain a sample and cannot be retested. The independent retesting of the blood can examine the blood alcohol level and can also be used to attack the validity of the blood test if there are issues with the amount of preservative in the sample, evidence of microbial growth, or problems with how the blood sample was obtained, handled, and stored.

Breath Tests

If the driver suspects they are well over the limit, a breath test may be a better choice as it could give their attorney more room to attack the test results. The Breathalyzer is usually administered much closer to the time of driving than blood tests. If the driver finished drinking right before driving and getting pulled over, alcohol is likely still being absorbed into their blood stream. So the Breathalyzer could show a lower result than the blood test, which is given later, at the station, after the alcohol has been absorbed and your blood alcohol level has risen.

Your attorney may be able to use your rising blood alcohol level as a defense to drunk driving. 

Non-Alcohol DUI

If you are arrested for DUI and have taken prescription or recreational substances that can impair driving, know that if you choose a blood test, your blood can be tested for other substances other than alcohol. So you may prefer the breath test to avoid facing a DUI based on the combined influence of alcohol and drugs.

However, if the officer believes you consumed drugs, you may be required to take the blood test.

If you refuse a Breathalyzer or blood test after being arrested for drunk driving, then the officer can force you to take a blood test by requesting a search warrant. The search warrant will allow a phlebotomist to take a blood sample without your consent.  

To obtain a warrant, the officer must tell the judge why they think you are likely under the influence. 

In most cases, there is an on-call judge who can issue the search warrants after a telephone call from the police officer.

If you are convicted in California of DUI and refusing to submit to a blood or breath test, the enhanced penalties for a first DUI offense are an additional 48 hours in county jail and a nine-month California DUI school (in lieu of the standard three-month school). The additional penalties for a second DUI offense are an additional 96 hours in jail time, for a third DUI offense an additional 10 days in jail, and for a fourth or subsequent DUI offense an additional 18 days in county jail.

If you refused to take Breathalyzer or blood test after being arrested, your license will be suspended for one year. This will happen whether you are found guilty of the DUI or not. During the one year, you are ineligible for a restricted license. 

You will lose your license for two years if you have one prior DUI conviction and three years if you have two or more prior DUI convictions.

The first step in fighting a charge that you refused a post-arrest blood and breath test is to request a DMV hearing. This must be done within ten days of your arrest for DUI. If you do not request a DMV hearing within ten days then your license will automatically be suspended. If you contact our office within the ten-day period, we will request a DMV hearing on your behalf, free of charge. At the DMV hearing over a refusal, we can attack whether you were lawfully arrested, whether you were properly advised of the requirement to test, and whether you truly refused.