One of the most common questions we receive at Law Office of Rodney Gould is whether a driver can refuse a breathalyzer test during a DUI stop. The answer involves understanding California's implied consent law, the difference between preliminary and evidentiary tests, and the serious consequences that come with refusal.
What Is Implied Consent?
Under California Vehicle Code Section 23612, every person who drives a motor vehicle in California is deemed to have given their consent to chemical testing of their blood or breath if they are lawfully arrested for driving under the influence. This is known as the "implied consent" law.
In simple terms, by choosing to drive on California roads, you have already agreed to submit to chemical testing if an officer has probable cause to arrest you for DUI. This consent is implied by the act of driving itself.
Preliminary vs. Evidentiary Tests
It is crucial to understand the difference between two types of breath tests:
- Preliminary Alcohol Screening (PAS) test: This is the roadside breath test administered before arrest. For most drivers over 21 who are not on DUI probation, this test is voluntary. You can refuse it without penalty. However, the officer may still arrest you based on other evidence of impairment.
- Evidentiary chemical test: This is the test administered after you have been lawfully arrested. Under implied consent, you are required to submit to this test. You can choose between a breath test or a blood test, but you must take one.
Consequences of Refusing the Evidentiary Test
If you refuse the post‑arrest chemical test, the consequences are severe and automatic:
- First refusal: One‑year license suspension with no possibility of a restricted license
- Second refusal (within 10 years): Two‑year license revocation
- Third refusal (within 10 years): Three‑year license revocation
These penalties are in addition to any penalties from a DUI conviction. And unlike a standard DUI suspension, a refusal suspension does not allow for a restricted license to drive to work or school. It is a hard suspension with no driving privileges whatsoever.
The Refusal Enhancement
Beyond the DMV administrative penalties, refusing a chemical test also triggers a "refusal enhancement" in your criminal DUI case. If convicted of DUI with a refusal allegation, you face additional mandatory jail time:
- First DUI with refusal: 48 additional hours in jail
- Second DUI with refusal: 96 additional hours in jail
- Third DUI with refusal: 10 additional days in jail
Can You Still Fight a Refusal?
Yes. Just because the DMV alleges you refused does not mean you have no defense. There are several grounds on which a refusal allegation can be challenged:
- Unlawful arrest: If the officer did not have probable cause to arrest you, the implied consent obligation does not apply
- Inadequate advisement: The officer is required to clearly inform you of the consequences of refusal. If this advisement was incomplete or unclear, the refusal may be invalidated
- No actual refusal: Sometimes what the officer interprets as a refusal is actually confusion, a language barrier, or a medical condition. We have successfully argued that our clients did not actually refuse but were unable to comply due to circumstances beyond their control
- Coerced consent: If the officer used threats or force to obtain or prevent testing, the results or refusal may be challenged
What Should You Do?
Our general advice is to comply with the post‑arrest chemical test. The consequences of refusal are almost always worse than the consequences of taking the test, even if the results are unfavorable. A skilled DMV defense attorney can challenge test results on many grounds, but challenging a refusal is significantly more difficult.
If you have already refused a chemical test, do not assume your case is hopeless. Contact Law Office of Rodney Gould immediately for a free consultation. We have successfully defended many refusal cases and may be able to help you keep your license.
Rodney Gould
Based in Sherman Oaks, California, Law Office of Rodney Gould is led by attorney Rodney Gould, who has been practicing law since 1991. Though he started as a civil prosecutor working for the United States Postal Service on mail fraud cases in Washington, D.C., his career has developed over the years to include litigation experience in federal courts across the United States, serving as a special assistant U.S. attorney for the District of Columbia with the Department of Justice and, after leaving the government sector, providing legal services to some of the nation’s largest companies such as Starbucks, MCI, USAA and Bank of America.
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