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DUI and Chemical Test Refusal in California

If you are pulled over on suspicion of drunk driving, you might be asked to take one of several types of tests intended to alert the officer as to whether you had been drinking. In addition to “field tests” that involve the officer asking you to stand on one leg, follow a pen with your eyes, or to walk on a line and turn, you might also be asked to take a “chemical test.” Chemical tests in California include the analysis of breath and blood. If both breath and blood tests are unavailable a urine test can be administered. While testing above the legal drinking limit can land you in trouble, refusing to take the test can also have serious consequences.

Do I have to submit to a chemical test if I am pulled over?

If you are asked to take a preliminary alcohol screening test but have not been placed under arrest for DUI, you can refuse the preliminary alcohol screening test if you are 21 years old or older so long as you are you are not on DUI probation. To be clear, you must submit to preliminary alcohol screening test if you are under the age of 21 or if you are on DUI probation. However, if the officer has probable cause to arrest you, then you will be arrested and required to submit to testing after your arrest. This is because under California’s Implied Consent Law, when you get a state driver’s license you agree to comply chemical testing of your blood, breath or urine.

Once you have been arrested, you still have the choice to refuse to take the chemical test, but you will face penalties for your refusal. Additionally, it is possible that you will be penalized for refusing to take the chemical test, and still be found guilty of a DUI, thereby greatly increasing the consequences of your action.

What are the punishments for refusing to undergo a chemical test?

In California, the refusal to undergo a chemical test once you have been arrested on suspicion of driving under the influence can lead to the suspension of your driver’s license. How long you lose your license for will depend on whether you have had previous offenses. On your first offense, you will have your license suspended for one year. If you have a second offense within ten years of the first, your license can be suspended for two years, and at your third offense in ten years, your license can be suspended for three years.

In addition to the suspension of your license, you will face fines regardless of how many times you have been caught driving under the influence or refusing chemical tests after being suspected of driving under the influence.

Again, it is important to point out that even without the chemical test results, you can still be convicted of a DUI. Additionally, your refusal to take the test can be used as evidence against you in the DUI case. If you are convicted, you will suffer the penalties for the DUI, and for the refusal to submit to the chemical testing.

Can I request a lawyer before submitting to the chemical test?

We are often told that if we are arrested, we should request to speak to an attorney immediately. In the case of DUI, you actually do not have the right to consult with an attorney before taking a chemical test. The officer who arrested you has to explain that you that you do not have the right to speak with a lawyer prior to the test, and must also explain the consequences that you will face for refusing the test.

If you are arrested for a DUI, it is important to speak with an experienced attorney as soon as possible. Contact Milligan, Beswick, Levine & Knox LLP for a consultation.

1447 Ford Street Suite 201 Redlands, California 92374
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Stephen Levine, is a Board Certified Specialist in Criminal Defense — an honor achieved by only the top criminal law attorneys in California. Mr. Levine has over 40 years of experience in criminal defense and family law serving Southern California, and is a highly regarded Super Lawyer as well as AV Rated attorney.