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Your Rights When Submitting to a California DUI Breath Test

Posted by Christopher Martens | Jan 31, 2024 | 0 Comments


The staggering number of driving under the influence (DUI) convictions across the state of California is in no way a testament to either the accuracy or the validity of the state's breath testing equipment. If anything, the over 200,000 convictions taken in by California court systems every 12 months are more a testament to how many California DUI defendants forego trial and plead guilty to their charges as a result of their belief in the accuracy and validity of the California DUI breath test result.

Although a driver suspected of DUI, who refuses to submit to a breath test greatly damages their chances of having their charges dismissed, those who choose to not take their case to trial, but do choose to appear in court only to plead guilty leave themselves absolutely no other option but to accept the DUI conviction into their criminal record, as well as any penalties the court chooses to levy against them.

Have you been charged with driving under the influence after refusing to submit a breath test?

California Breath Test Laws

In the state of California, police officers who for whatever reason suspect you of being under the influence of alcohol while behind the wheel will typically request you to submit to a battery of tests to aid in their investigation as to your level of intoxication. This battery of testing will likely include one, several, or perhaps even all of the following;

  • Field Sobriety Test (HGN eye test, One-leg Stand test, Walk and Turn Test)
  • Medically drawn blood test (to collect BAC evidence after arrest)
  • Preliminary Alcohol Screening (PAS); handheld breath test used by officers in the field to get a “preliminary reading” of the driver's BAC before arrest for DUI
  • Desktop Breathalyzer Test (Evidentiary Breath Test such as the Dräger Alcotest given to suspected DUI driver after arrest to further strengthen case)

Now, although this is in no way meant to be misconstrued as any legal advice at all, you do not necessarily have to submit yourself to a Field Sobriety Test of any kind. Though you may further complicate your already intense situation, FSTs are not in any way supported by the California Implied Consent Law.

While police officers will rarely – if ever – disclose your right to do so, you do not have to submit to a breath test via the PAS handheld device either. The laws are clear on the collecting of evidentiary data while investigating DUI. Due to these handheld PAS breath tests not being per the 20-minute observation, nor considered extraordinarily accurate in determining the exact BAC of a suspected DUI driver, the PAS test is too not supported by the California Implied Consent Law.

**However, your right to refuse a handheld PAS breath test is voided if you are of illegal drinking age (under 21) and/or currently on probation for a prior DUI**

Chemical Testing You Are Required to Submit To

All this being said, as part of the Implied Consent Law, regardless of whether you want to or not nor how extremely high you feel your BAC result will be; you must submit to an evidentiary breath test after your arrest, as well as a physical forensic blood test if asked to do so. Refusing to submit to chemical testing after your arrest for DUI will almost certainly create a more difficult legal issue for you and your Visalia DUI lawyer.

Although an experienced and skilled DUI attorney adept in California DUI law and the strategic defenses surrounding the challenges and the defense against them may sometimes be successful in defending a California breath test refusal charge, you and your attorney have a much greater chance in court if you submit to a breath test as required.

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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