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Can I Refuse to Take a BAC Test?

Posted by Christopher Martens | Jul 31, 2015 | 0 Comments

You may have heard that you cannot be required to take a BAC, or blood alcohol concentration, test for a DUI. This is good advice in some circumstances and bad advice in others. Unfortunately, not understanding this part of California DUI law can result in harsher sentences and loss of your license for a year. The basic answer is that, when lawfully arrested, you are required to consent to either a breathalyzer or blood BAC test. Under rare circumstances, when a breath or blood BAC test is not feasible, you can take a urine test instead. Urine BAC tests are not as reliable as the other methods and so are only used in certain circumstances. At the time you applied for your California driver's license, you agreed to the implied consent law, which requires you to submit to a BAC test when arrested for a DUI. Unfortunately, you can't refuse the BAC at that point because your consent was part of you obtaining driving privileges in California. If you do choose to refuse prior to arrest, do so politely and be prepared to be arrested anyways. There are many signs an officer can use as probable cause to arrest you for a DUI, other than measuring your BAC. Having alcohol on your breath, driving unsafely, having alcohol in your car or performing poorly on a roadside sobriety test can all result in an arrest, even without a BAC reading over the legal limit. If they arrest you based off of these other signs, you then have to submit to a BAC test. Keep in mind that refusing isn't enough to prevent an arrest. If you have been drinking and driving under the influence, there will most likely be other signs you are impaired. Those signs may be sufficient for an officer to arrest you, at which point you must consent to one form of the BAC test. Refusing once arrested for a DUI has serious consequences. Under California's Administrative Per Se law, the DMV will suspend for one year the license of anyone who refuses to take a BAC test when arrested. For second or third offense, your license suspension will be two or three years, respectively. Also, refusing to take a BAC test once arrested usually doesn't bode well for your case. You can still be convicted if you refuse and in some cases this can be used against you as evidence that you were aware you were guilty of driving under the influence. Refusing to take a BAC test is generally not advised. There may be action you can take after the BAC results are in to have the results dismissed. Keep in mind that the results of a BAC test aren't always 100% accurate. The science of breathalyzers is complex and the machines themselves require regular maintenance and calibration to be accurate. They have also been known to provide false positives, although this is less the case with newer, more technologically advanced machines. Challenging the accuracy of your BAC reading is one possible defense you can raise in your DUI case. Some people have successfully had DUI charges dropped because they challenged an inaccurate reading from a machine not properly maintained and used by a trained officer. That being said, don't feel like taking a BAC test is the point where you are convicted of a DUI. There will be other things, or elements, in your case that will be examined and considered. Some of these elements may be challenged as well. In general, think before you refuse to submit to any test when asked by an officer. It could mean the difference between losing your license for a few months or a year. If you have refused to take a BAC test and are now facing a DUI charge as a result of being pulled over, contact an experienced DUI defense attorney right away. Discus your case with them and explore your potential defense options.

If you are facing DUI charges in Tulare, Kings or Fresno County, The Law Offices of Christopher Martens can help. With 10 years experience in DUI and criminal defense, attorney Christopher Martens can fight aggressively for you to ensure you are charged fairly and justly based on correct facts. Mr. Martens practices criminal defense exclusively and has never worked as a prosecutor. He will fight for your case aggressively and will go the distance for your rights. Contact our Visalia or Hanford offices at 559-967-7386 or email us at [email protected] to discuss your options for defending your case.

About the Author

Christopher Martens

Bio Visalia and Bakersfield criminal defense attorney who has dedicated his life to helping those who have been accused of crimes or injured due to the negligence of others.


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