Usually it’s going to be a bad idea to just flat out refuse a post-arrest chemical test. The penalties at the DMV become much harsher and the penalties in court can be much harsher if someone refuses a chemical test after they had been lawfully arrested.
In California, You Do Not Legally Have to Take a Breath Test Prior to Arrest, Unless You Are under the Age of 21 or Currently on Probation
We need to make distinction and call attention to the difference between the time before someone’s arrested and after someone’s arrested.
In California, you do not have to submit; you do not have to give a breath test or a blood test before you are arrested. You don’t have to do field sobriety test. You do not have to answer questions about where you are coming from or where you are going. You do not have to do a preliminary breath test in the field.
But if you are arrested, then you do have to submit to a test.
There are certain situations where you do have to take a breath test even if you haven’t been arrested yet. If you’re under 21, then you have to submit to a preliminary alcohol screening device. If you’re on probation and it’s the term of your probation that you submit to a chemical test, even if you’re not arrested, then you would need to do that.
As far as people refusing to take chemical test, a lot of times it comes down to a misunderstanding or a lack of credibility of the police officer and sometimes confusion of someone who’s being arrested.
Some Police Officers Do Not Distinguish between the Preliminary Breath Test and the Breathalyzer Machine, Leading to Confusion on the Part of the Driver about Which Test to Refuse
Someone may be confused if they give a breath test in the field and then the officer says you need to do a breath test. The individual doesn’t understand because they just did one and the officers don’t make clear the difference between a preliminary breath test in the field and an actual breath test.
In some cities and counties, both the pre-arrest and post-arrest breath testing can be on the same machine in the field. It does get very confusing. Sometimes the officers induce confusion by not making it clear what somebody has to do and what they don’t have to do.
Officers may move quickly through the arrest procedure; they may skip over steps and not read the proper admonition to somebody who has been stopped and arrested for a DUI.
In order for DUI refusal to stand, the officers are supposed to read a form from the Department of Motor Vehicles; however, this isn’t always done. The verbiage on the form explains what happens if they refuse.
Officers don’t always read this form or they don’t always read it right, giving false information or misleading information to somebody. This can result in someone choosing not to do a breath test at the station or not to do a blood test when, in fact, if they were properly advised they may choose to do such a test.
There are different requirements. If somebody’s under 21 then they need to submit to preliminary alcohol screening. Or, if they’re on probation they need to submit to a preliminary alcohol screening.
But if they’re over 21 and they’re not on probation, then people do not have to take a preliminary or screening test but they do have to submit to a chemical test and the officer’s supposed to read to them the advisement that talks about what happens if they refuse.
Officers Are Supposed to Advise Drivers That a Refusal Can Result in a One to Three Year License Suspension
The officer is supposed to tell them that they’re required by state law to submit to a test. When an officer believes a person is under the influence of alcohol, drugs, or both, the officer should tell the person the consequences of refusing to submit or failing to complete a test. If you refuse, your driving privilege can be suspended for one year or revoked for two to three years.
The Following Is What the Officers Are Supposed to Read to Individuals Suspected of Driving While Impaired:
“A second offense within ten years of a separate violation of driving under the influence, including a charge reduced to reckless driving or vehicular manslaughter or a violation of Section 23140 of CVC, which results in a conviction; or separate administrative determination that you were driving with a BAC of a 0.01% or more while under the age of 21; or separate administrative determination that you were driving with a BAC of 0.01 or more while on DUI probation; or BAC of 0.04 or more while operating a commercial motor vehicle; or a BAC of 0.08 or more at any age; or you refused a test, will result in a two-year revocation.
“Three or more offenses within 10 years of any combination of the above violation convictions or separate administrative determinations will result in a three-year revocation.”
The Advisement Contains an Abundance of Confusing Numbers and Information
That’s what the officers are supposed to say and it can become very confusing to somebody. There are a lot of numbers and a lot of different information that doesn’t apply in most situations. Someone can very easily say to themselves, “I just did a test; I don’t need to do another test,” and that can result in a refusal.
If You Initially Refuse but Decide to Later Undergo the Test, You Will Likely Still Be Classified as a Refusal
Someone can change their mind and the law is not very friendly towards a driver who, at first, refuses and then changes their minds. An officer could give a test but they don’t have to. One refusal equals a refusal.
Sometimes when we’re dealing with a police officer, they may decide they just don’t like the person. They have an attitude conflict with the person and they may write the case up as a refusal to punish somebody who is not going along with what they feel they should be doing.
Personal Attention
