Anyone who is pulled over by the police just after consuming alcohol, even if the amount is minimal, faces a potentially traumatic, perhaps even life-altering, experience in the next few minutes during what may start as a routine traffic stop. How a motorist handles these next few minutes is crucial to the outcome of any potential criminal charges related to driving under the influence.
Drivers in California who operate a motor vehicle under the influence of alcohol or drugs may be charged with violating California Vehicle Code § 23152(a) VC (driving while under the influence of alcohol) and violating California Vehicle Code § 23152(b) VC (driving with a BAC of .08 or higher). Under California’s “implied consent” law, persons who avail themselves of the privilege to drive in California, impliedly consent to chemical testing for “BAC” (blood alcohol levels) and/or the presence of drugs if lawfully arrested for DUI.
After being pulled over – but before any arrest – a police officer may ask a motorist to take a hand-held preliminary alcohol screening (PAS) breath test. In California, there is no penalty for refusing to take a PAS breath test unless the driver is under age 21 or on probation for a prior DUI conviction.
A PAS test is just another field sobriety test, like walking a straight line or bringing a finger to your nose, to help the officer on the scene decide whether a driver is legally intoxicated and should be arrested. Unless a driver is under 21 or on DUI probation, refusal to take a PAS test is not admissible at trial as evidence of guilt.
However, drivers who agree to submit to a PAS test subject themselves to the results of the test being used against them as evidence to help convict them of a DUI. Drivers must be aware of the tendency of law enforcement officers to imply that this test is mandatory, or that taking it may even help their case, but it is not mandatory and accepting legal advice from police officers or sheriff’s deputies is a not a recommended course of action.
After a motorist has been placed under arrest, he or she may be asked to take a breath, blood, or urine test. A motorist must be given a choice of blood or breath test in most circumstances. A urine test may be offered if one of these two tests is not available or the motorist cannot complete the blood test or is unable to take either of the two tests for medical reasons.
Under California’s “implied consent” law, a motorist in California may not refuse a post-arrest DUI test without facing consequences that include additional time incarcerated and license suspension. This applies even if a motorist has already submitted to a preliminary alcohol screening (PAS) test.
If a motorist has never had a DUI and refuses to take a test at the police station following his or her arrest, the penalties include 48 extra hours in jail. six extra months of required DUI school, and a one-year license suspension. The following chart summarizes the additional penalties for anyone with prior DUI convictions who is convicted for the present DUI arrest and has refused to take a DUI breath test.
# of Priors Additional Jail Time License Suspension or Revocation for Chemical Test Refusal
1 96 extra hours in jail 2-year license revocation
2 10 extra days in jail 3-year license revocation
3 or more 18 extra days in jail 3-year license revocation
In California, motorists do not have the legal right to refuse a post-arrest DUI chemical test on the basis that they believe they are the victims of an unlawful arrest. If the traffic stop or arrest is found by the court to be unlawful, the court will dismiss the charge even if the DUI test indicates a criminal level of intoxication.
John Patrick Dolan has represented California motorists charged with DUI for over 40 years. He is a recognized California State Bar Certified Specialist in Criminal Law and a true courtroom veteran of DUI cases. Call the Dolan Law Offices today at (760) 775-3739 or find out more online here.
