FAQ DUI Chemical Test
You can also find other helpful articles related to California DUI breath testing, California DUI breath testing, felony DUI, DUI of drugs, DUI causing injury, Title 17 requirements for collecting, storing and analyzing data for state DUI chemical test, DMV hearings, license suspension, DUI penalties, possible DUI plea bargains and 20 ways to beat a DUI charge.
1. What is state’s “implied consent” DUI law?
When driving anywhere in the state, you agree to possible chemical testing for blood alcohol levels (BAC) and/ or drugs, if you are lawfully arrested for DUI. The consent you give each time you drive is called California’s “implied consent” law.
2. Does the law allow me to refuse to take a chemical test?
No, the law does not allow you to refuse a post-arrest chemical test without facing serious consequences.
However, you can refuse a pre-arrest breath test since it is a different test.
To better explain the difference, we’ll take a brief look at some different scenarios that have happened to our clients.
2.1. Refusing the breath test known as Preliminary alcohol screening (PAS)
After you are stopped by a police officer, you may be asked to take a breath test called a preliminary alcohol screening (PAS). The officer will have a hand-held device he or she uses to administer the test. The PAS breath test is administered prior to any arrest.
Therefore, you face no penalties for refusing to submit to a PAS breath test unless you fall into one of two categories. You are under 21 years old or you’re on probation for a prior DUI conviction.
Unfortunately, the police will rarely let you have the choice of refusal. The PAS test is a type of field sobriety test (FST) such as placing your finger or your nose or walking in a straight line. These types of tests are given to assist the cop in determining whether to arrest you for DUI.
As long as you’re not on DUI probation or under 21 years old, your PAS test refusal may not be admitted at your trial as proof of your guilt.
However, if you do consent to a PAS test, the results can be used against you at trial. Therefore, we don’t recommend you agree to take a PAS test unless you are under age or on DUI probation.
Some counties such as Orange and Ventura Counties instruct their police to use Evidential Portable Alcohol System (EPAS) to complete the post-arrest breath tests. The device is the same as the Draeger Alcotest device some police departments use for preliminary screenings. The difference is that the EPAS can be connected to a printer by blue tooth or hardline. If you are asked to blow into a handheld device after you have been placed under arrest, we advise requesting a blood test instead.
2.2. Chemical test refusals after you’ve been lawfully arrested
Once you’ve actually been arrested, you don’t have the option to refuse a chemical test. If you, you face severe consequences. It doesn’t matter if you’ve taken a Preliminary Alcohol Screening (PAS) test or not.
State law does not give you the legal right to refuse the chemical test post arrest. It doesn’t matter if you believe you’ve been wrongfully arrested. If the court finds that your traffic stop or arrest were unlawful, the charge will be dismissed. It won’t matter if the test indicate that you were under the influence. All evidence will be thrown out.
3. Do I have the choice of which chemical test I can take?
Whenever alcohol-based impairment is suspected, the officer must typically give you the choice of a California DUI blood or DUI breath test. You only have the option to take a urine test, if:
• Police suspect drug uses and you aren’t able to complete a blood test
• Either the blood and/ or breath tests aren’t available
• You have a specific medical condition that prohibits you from taking either test
In some circumstances, you may not have the option to choose the DUI test you want to take. Let’s take a brief look at each of the situations that do not give you a choice.
3.1. The officer suspects you are under the influence of drugs
In this situation, the arresting officer may suspect you were driving under the influence of drugs (DUID) not alcohol. In the beginning, you may be given the option to take a blood or breath test. However, even if you choose to take the breath test, you may be required to take the blood test too. This happens when the arresting officer has a clear indication that the test would show drugs in your system.
The suspicion of drugs in your system may happen in two ways: the arresting officer might make the determination or the police may use a drug recognition expert (DRE).
The legal definition of “clear indication” your blood test would establish drugs in your system may include:
• Your verbal statement like:
“I only smoked one joint.”
“I snorted a little coke, but that was hours ago.”
“I did a little meth, but it wasn’t enough to get me high or anything.”
• The objective symptoms of drug intoxication, which includes:
Elevated pulse or heart rate
A PAS test results negative for alcohol consumption
• Any physical evidence of drug use such as:
An odor of marijuana in your car
A prescription bottle on you or in your purse
White powder around your nostrils
Violation of (California Health and Safety Code 11364) drug paraphernalia in your vehicle
3.2. Your preferred chemical test isn’t available
On rare occasions, a breath or blood test isn’t available. For instance, you are taken to the hospital for medical treatment where there is no breath testing devices. In this case, you’d have to take whatever test is available at that time.
3.3. Your submitted breath test results aren’t reliable
In some cases, the arresting officer may believe your breath test results isn’t reliable. If this occurs, you may have to take a urine or blood test.
Typically, an unreliable blood test happens because:
• The breath testing machine stops the test
• The breath test results are lower than what the arresting officer expected
The reasons for unreliable breath test result may involve:
• The breath machine not working properly
If there’s an indication of equipment problems, the police officer will try to give you the test again or find another breath test device. However, if the device really isn’t properly working and no other machine is available, you have to take an alternative test.
•You can’t generate enough air to take the test
Breath machine are calibrated to base results on deep lung air. This air is the most reliable indicator of BAC levels. Therefore, blowing a minimum volume of deep lung air into the machine to generate a valid report is required.
If you have a lower lung capacity you may not be able to physically complete the test, even if you want to take it. In this is the case, you should tell the individual administering the test. If you don’t, the administrator may believe you are trying to avoid generating enough deep lung air to register a reading.
• The breath machine detects you have alcohol in your mouth
The software in a breath testing device is programmed to stop a test when it detects alcohol residual in the mouth.
Typically alcohol dissipates from your mouth in about 15 to 20 minutes. This is the reason why California Code of Regulations’ Title 17 requires a 15 minute waiting period. The observation period gives time for an accurate reading and the test can be administered.
If the machine stops the test because it detects alcohol in your mouth, the officer will wait at least 15 minutes. He or she will try again. If no valid reading can be obtained, you may have to take a blood or urine test.
• The arresting officer isn’t properly trained to administer the chemical test
State regulations require anyone administering a DUI breath or blood test to be properly trained. However, the regulations aren’t always observed.
If the arresting officer isn’t properly trained and there’s no one else who can administer the test, you may be asked to talk a different test. It’s important to comply. Your attorney can challenge any test results on the legal grounds that proper procedures weren’t followed.
• The arresting officer was mistaken
Sometimes it is easy to forget that cops are human. The arresting officer may honestly believe that you were under the influence at the time of the traffic stop, even if you weren’t. So he or she may be hoping for a result that’s over the limit.
Another possibility is that the administrator of the test is tired. He may not realize he has forgotten to complete part of the procedure.
It doesn’t matter the reason the officer or administrator wants you to take the test again or an alternative one. If you fail to do so, it may be considered a chemical test refusal.
Remember, if the testing procedure was flawed, we will challenge the result. It’s harder to challenge a chemical test refusal.
3.4. If told to take a different test than the one I requested, should I do so?
Yes, any time you don’t to follow the officer’s instructions regarding chemical testing is considered a refusal.
It’s important to remember that under California’s implied consent law, you have already agreed to take the testing. You can request a different chemical test if the arresting officer doesn’t offer you the option. Also, keep in mind that if all procedures aren’t strictly followed during the testing, your attorney will be challenged.
Once you’re directed to take a certain test, there are very few legal reasons to refuse it.
3.5. What happens if I have a medical condition that prevents me from taking the chemical test?
You may be excused from taking a particular chemical test because you have a certain medical condition. However, medical conditions will not excuse you from completing the chemical test. For instance, you may not be able to take a blood chemical test, but you may be able to take the breath test. In this case, you have to take the breath test.
You may refuse to take the blood chemical test for the following reasons:
• A heart disorder that you’re taking anticoagulants for
• A blood clotting disorder
Also, specific medical conditions may result in a false over the limit BAC reading on a breath test. For example:
• Acid reflux, GERD or chronic heartburn may produce high BAC breath test result that’s false
• High-protein diets and Atkins-style low-carbohydrate diets may trick the DUI breath test device to give a falsely high result
If the arresting officer asks you if you have a medical condition or diet she should know about, tell her. A failure to truthfully respond may be considered a willful refusal to cooperate with law enforcement.
3.6. What if I am severely injured or unconscious?
A severe injury, unconscious or even death doesn’t legally excuse you from a chemical test.
However, your chemical test refusal may be excused if you have an injury such as head trauma that prevents you from providing meaningful consent. Having alcohol or drugs in your system, even prescription drugs, doesn’t excuse you from the test.
3.7. What if I can’t complete a chemical test after I start it?
You’re allowed to take a different chemical test, if you’re unable to complete the test for any reason outside of your control. For instance, you:
• Aren’t able to generate a sufficient volume of air for your breath test
• Aren’t able to provide enough urine for a urine test
A willful failure to complete a chemical test is a refusal. If your case proceeds to trial, the judge will instruct the jury that they can consider your chemical test refusal as an indication you knew you were guilty of DUI. However, the jury isn’t required to do so.
4. What qualifies as a chemical test refusal?
The concept of “refusal” is tricky. There are a lot of situation where you may unknowingly refuse a chemical test.
In addition to the information above, the following are some refusals you should know about:
• You were only given one chance to take the chemical test
Once you initially refuse to take the chemical test, you don’t have the right to change your mind. The arresting officer isn’t required to give you a second chance.
• You don not choose which chemical test you want to take
You’re probably familiar with the legal term of “you have the right to remain silent” if you’re ever arrested. However, the Miranda warning means that you the right not to implicate yourself. Unfortunately, the warning doesn’t have anything to do with a chemical test. It doesn’t mean you don’t have to choose which test to take after a DUI arrest.
If the officer ask you which test you want to take. Tell him. When you don’t respond, your silence may be considered a chemical test refusal.
• You don’t have the legal right to consult an attorney prior to a chemical test
Typically, you have the right to speak to your attorney after an arrest. However, the right doesn’t extend to chemical tests. You can’t speak to your attorney prior to taking the test.
• You don’t have the right to request your doctor’s presence at the chemical testing
You aren’t entitled to having your doctor present to observe or conduct the test. According to Title 17 CCR regulations, a chemical test may only be conducted by properly trained law enforcement officer or outside laboratory.
5. Can law enforcement force me to take a chemical test against my will?
Typically, you can’t be forced to take a chemical test without a warrant. It would violate your right to unreasonable searches and seizures given to you by the U.S. Constitution’s Fourth Amendment.
However, police can forcibly draw your blood for a chemical test under two circumstances. There are “exigent circumstance” to justify the police acting without a required warrant. Another instance is if the police obtain a warrant.
Prior to this change, it was a common occurrence in California for law enforcement to force DUI blood draws. The forced blood draws were due to the percentage of alcohol in the blood starts to fade shortly after you stop drinking. The body starts to eliminate the alcohol from your system.
However, a U.S. Supreme Court decision held that you have a strong privacy interest in preventing law officials from piercing your skin. The fact that alcohol disappears you’re your blood quickly doesn’t justify forced blood draw without obtaining a warrant first.
This ruling has caused many California law enforcement agencies to stop forced blood draws for misdemeanor charges. If you are suspected of a felony DUI, you may undergo a forced blood draw if a warrant can’t be quickly secured.
In California, DUI charge becomes a felony when you:
1. Cause death or injury to another
2. Have at least three wet reckless or DUI convictions on your record within 10 years
3. Have at least one conviction that’s a DUI felony on your record
6. Are there any penalties for refusing to take a DUI chemical test in California? If so, what are they?
Yes, there are penalties for refusing to take a chemical test. The most serious penalty is the automatic loss of your driver’s license. The specific time varies according to the current DUI charge (fist, second or subsequent time). You can try to get your license back during a California DMV administrative hearing for DUI cases.
The state district attorney may file criminal DUI charges against you in Superior Court.
Double Jeopardy clause of the US Constitution doesn’t apply here. Thus, your rights aren’t violated with the above actions because DMV sanctions are independent of any court DUI penalties. Thus, DMV revocation or suspension is an administration action regarding your driving privileges.
Here’s a closer look at the differences between the above actions:
6.1. Possible Criminal prosecutions after a DUI chemical test refusal
A chemical test refusal may have a positive impact on your case.
Without any corroborating test results, the district attorney may not believe the creditability of the arresting officer. He or she may feel that the arresting officer won’t be articulate enough on the witness stand to convince a jury that you’re guilty.
If that situation occurs, your DUI charge may be dismissed or reduced to a “wet reckless.” The latter is a less serious charge (wet reckless) is sometimes accepted as a DUI plea bargain. It means that you agree that you were driving with a measurable level of alcohol in your blood.
The D.A. may decide to dismiss your chemical refusal charge, but keep your DUI charge. However, if the D.A. isn’t willing to dismiss or reduce the charge, one of two things will occur:
1. You can plead “no contest” or guilty to DUI with a chemical test refusal, or
2. Your case will go to trial
If you take your chances at trial and are convicted of refusing to submit to a chemical test, you will face enhanced penalties. These penalties are in addition to and served consecutively to your underlying sentence for a California DUI.
The following are the enhanced chemical test refusal test:
• First DUI Offense:
1. Spend an additional two days (48 hours) in county jail, and,
2. Complete a minimum of nine months in California DUI School instead of the typical three months given for first time DUI convictions (without chemical test refusal).
• A second DUI offense within a 10-year period, an additional four days (96 hours) in county jail;
• A third DUI offense within a 10-year period, an additional 10 days (240 hours) in county jail;
• A fourth or any subsequent DUI offense within a 10-year period, an additional 18 days in county jail.
6.2. What are the California DMV consequences for a chemical test refusal?
Once you refuse to submit to a chemical test, the DMV automatically suspends your driver’s license.
You have 10 days after your arrest to request a hearing from the California DMV to contest your suspension. Requesting a hearing may postpone your suspension until the hearing’s outcome.
Issues generally addressed at a DMV hearing are:
1. Did the arresting officer have any reason to suspect that you were driving while impaired by drugs or alcohol?
2. Was your arrest lawful?
3. Were you properly told that your license would be suspended for a year or revoked for two to three years (with a prior DUI) if you refused or failed to complete a DUI chemical test?
4. Did you willfully refuse to either take or fail to complete a DUI chemical test after the arresting officer ask you to do so?
If you win the hearing, the DMV won’t suspend your license. However, if you lose the hearing, your punishment will include the following:
• One year suspension of your driver’s license (if it is your fist offense)
• Two-year license revocation (second DUI offense within a 10-year period)
• Three-year license revocation (third DUI offense within a 10-year period)
The DMV penalties are independent of what happens with your criminal DUI charge. However, you may be able to reclaim your driving privileges if:
• You’re found not guilty at your DUI trial, or
• The state dismisses your case because of lack of evidence
The following is a closer look at how the outcome of your DUI charge affects your driving privileges with the California DMV.
6.2.1. Dismissal of criminal charges and second DMV hearing
You may receive a second DMV hearing to regain your driver’s license if, because of lack of evidence:
• The D.A. decides not to file any criminal DUI or chemical refusal charges against you
• The D.A. does file DUI charges, but they are dismissed by the court
The DMV isn’t required to follow the court or D.A.’s lead. Remember, the D.A. is concerned with the evidence to convict you beyond a reasonable doubt. The DMV isn’t. The DMV hearing is an administrative hearing, not a criminal trial. Thus, the DMV must only prove it was more likely than not that you inappropriately refused a chemical test.
6.2.2. Does a “wet reckless” or DUI conviction affect your case with the DMV?
A plea of “no contest” or guilty to wet reckless or any other lesser offense won’t reverse a DMV licenses revocation or suspension. If a prosecutor drops your DUI and/ or chemical charges, it still won’t change your suspended or revoked license.
7. How can I defense against a California DUI refusal charge?
Your California DUI defense attorney will discuss your best defenses with you during your consultation. However, there are some common defenses in a chemical test refusal case such as:
• You weren’t “lawfully” arrested
When the arresting officer doesn’t have probable cause to stop you, it’s not a lawful arrest.
Therefore, it the arrest wasn’t lawful, you never refused a chemical test. Once the charges are dismissed or the jury finds you not guilty, the refusal charge is dismissed too.
For instance, you were arrested for DUI, but the officer didn’t actual see you driving. Instead, he saw you sitting in your parked vehicle with the engine running. When she asked you to take a chemical test, you refused and she arrested you.
A DUI charge requires that you operate a vehicle (that is moving), the officer can’t reasonably believe you committed a crime. The arrest is deemed unlawful. Both the refusal and DUI charge should be dismissed.
• The arresting officer didn’t explain your obligation to take the chemical test.
State law requires that an arresting officer advises you of the consequences for chemical test refusal. Any officer who fails to do so will flaw the DUI investigation which should result in a dismissal of your refusal allegation.
• “Refusal admonition” was misleading or confusing
The refusal admonition must be explained in a clear way. If it isn’t then you may have a justified refusal.
For instance, the arresting officer told you that your refusal “may” (as oppose to will) result in license suspension or revocation. At least one California court has decided that this violates the legal requirement for the warning.
• Your chemical test refusal was the result of a medical condition or serious injury that wasn’t related to drugs or alcohol.
California law recognizes that you may not be capable of providing a meaningful consent or refusal to the chemical test. For instance, an injury or medical condition may impair your ability to make a choice. However, being incapacitated from voluntary ingest of drugs or alcohol isn’t excusable.
For instance, you experience a mild stroke while you’re driving. Your car veers off the road. A California Highway Patrol officer stops you and asks for your registration and license.
During the stop, the officer notices you appear confused. He asks you to undergo a field sobriety test. You agree to the test. Unfortunately, he mistakes your stroke symptoms such as mental confusion, walking and vomiting for DUI. He arrests you. He requests that you submit to a chemical test. You refuse to do so.
Once the D.A. is given the evidence that you suffered a stroke, the chemical test refusal should be excused.
Well, let’s change the situation a little bit. Let’s say that your confusion was caused by Ambien instead of a stroke. You voluntarily ingested the sleeping pill. Your chemical test refusal wouldn’t be excused. Even though the pill was taken as prescribed by your doctor, you still voluntarily took a drug that could impair your ability to drive and make decisions.
Call us for legal assistance…
For more information regarding California’s DUI laws or to discuss your case privately with one of our attorneys, please contact us at the California Justice Law Group.