Refusing Breathalyzer In California

It is not uncommon for police and prosecutors to get it wrong when it comes to DUI stops and arrests. The law concerning DUI and DUI refusals can be incredibly complex. In navigating your way through this morass of law enforcement privilege and individual legal rights, it is essential to know the facts.

If you have been pulled over for a suspected DUI, you have the right to refuse a breathalyzer. In California, this is an option for drivers who are over 21 and not on probation for a prior DUI offense.

A breathalyzer differs considerably from blood alcohol test. You give consent to the latter by simply operating a vehicle. If you have been driving under the influence, refusing to do a blood alcohol test will lead to an additional charge known as “refusal enhancement”.

You can be charged with an implied refusal if you do not blow into the breathalyzer hard enough or if you are unable to give consent owing to unconsciousness. It is important to understand that you cannot be charged with implied refusal if the officer on the scene administered the test incorrectly or the breathalyzer does not work.

If you have refused a breathalyzer, you will be arrested. However, you should not be arrested, and certainly not charged, if you refused a breathalyzer but consented to some other test. From the moment you were pulled over your arrest was imminent. Depending on the particular surrounding your refusal, it is possible to fight the charge.

Hiring an experienced criminal defense lawyer can help you get the case dismissed under the following circumstances:

  • The officer should not have stopped you in the first place. The Fourth Amendment protects individuals against unlawful search and seizure. If it is found that there was insufficient reason for pulling you over, then your case will be dismissed.
  • The officer did not inform you of your rights concerning the breathalyzer test. Again, you do not have to take a breathalyzer. If the officer who stopped you insisted otherwise, then grounds may exist for charges to be dropped or the dismissal of your case.

As you can see, the law is not so straightforward when it comes to DUI and DUI refusals. There are plenty of built-in protections for individual rights, and there is enough opportunity to fight a bogus charge. With the right DUI lawyer, you can fight for an outcome that is favorable to you.