If a driver fails a blood alcohol test and has a BAC of .08 or higher, he or she may be charged with violating California Vehicle Code § 23152(a) (driving while under the influence of alcohol) and violating California Vehicle Code § 23152(b) (driving with a BAC of .08 or higher). Once lawfully arrested for DUI under this statute, California’s implied consent law makes it mandatory for motorists driving in California to submit to a breath test to determine blood alcohol concentration.
It is important to remember that the implied consent law only applies to breath tests after a lawful DUI arrest. Thus, California drivers may still refuse to take a preliminary alcohol screening (PAS) breath test before an arrest occurs. The implied consent law applies to all motorists in California, which includes both California residents with California-issued licenses, and non-California residents with out-of-state licenses.
After being pulled over for DUI, but before an arrest, a driver may be asked to take a hand-held preliminary alcohol screening (PAS) breath test. This is a roadside field sobriety test (FST), such as walking in a straight line or counting backward. This and other FSTs assist police in deciding whether to make a DUI arrest. A motorist may not be penalized for refusing to take a PAS breath test unless either under the age of 21 or on probation for a prior DUI conviction. A driver’s refusal to take a PAS test is not admissible at trial as evidence of guilt.
The police may require a motorist to take a blood test under three conditions, they are as follows:
- a legal warrant for the test,
- suspicion of a California felony DUI, and/or
- suspicion of DUID, under California Vehicle Code § 23152.
Thus, California law enforcement may forcibly draw a person’s blood for a DUI chemical test when they suspect a felony DUI and a warrant cannot be expediently obtained. Police may also require drivers to submit to a DUI blood test if there is a clear indication that a test would show the presence of drugs. An officer may gain a “clear indication” through the driver’s statements, objective symptoms of drug intoxication, and/or physical evidence of drug use.
As with any other California law, violations of the implied consent law may result in penalties, including the following increased penalties added to California’s standard DUI penalties, and a mandatory driver’s license suspension that occurs despite the outcome of the driver’s DUI matter.
The enhanced DUI breath test refusal penalties are:
- First DUI offense – an additional 48 hours in county jail and a minimum nine-month California DUI school;
- Second DUI offense within ten years – an additional 96 hours in county jail;
- Third DUI offense within ten years – an additional 10 days in county jail; and
- Fourth or subsequent DUI offense within ten years – an additional 18 days in county jail.
John Patrick Dolan has handled everything from traffic tickets to death penalty murder cases. Mr. 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.