Category Archives: Refusing a Breath Test

Alcohol tests and drivers’ rights

In today’s politically heated society, controversy over rights on roadways has become an increasingly relevant topic. Injustice and the tension between drivers and police officers takes most of the spotlight, but other issues involving drivers’ rights are a major topic of debate, as well. In California, few drivers know the details of their rights on the road. Even though legal details can become complex, state laws protect drivers from unneccessary searches and other unlawful procedures. 

ABC 10 News discusses the recent controversy surrounding a Utah nurse who refused to draw the blood of an unconcious patient, which ultimately brought to attention the disagreement over drivers’ rights in the country. The patient of the nurse had been in a car accident that left another driver dead, but the nurse claimed that, under hospital policy, she was not allowed to take the blood of patients who had been in accidents. To the nation’s shock, the nurse was arrested; debate on the rights of patients and the extent of police intervention has thus taken the media by storm in recent weeks. But what, ABC asks, are drivers’ actual rights when it comes to testing for blood alcohol concentration? The report offers the following points:

  • The Fourth Amendment protects citizens from unlawful searches — warrants may only take place upon probable cause
  • Any person with a driver’s license must consent in writing to submit a chemical, blood, breath or urine test, but only if under lawful arrest for driving while under the influence (this law is also known as California’s ‘implied consent’ law)
  • A driver does have a choice between a blood and breath test, and police are required to notify the driver of this choice        

As for the implied consent law, recent Supreme Court rulings have found that drawing blood on a DUI suspect without a warrant is in violation of Fourth Amendment rights.

There may be a number of details to sift through when understanding drivers’ alcohol testing rights, but Findlaw reminds its readers that any refusal of a Breathalyzer test can result in serious consequences. Possible penalties include driver’s license suspension and jail time. Even in cases in which drivers are not under arrest, they may face additional obstacles in court due to police observation at the scene, witness testimony and other situational factors.     



Defining preliminary alcohol-screening tests

The common school of thought among many in Encino is that law enforcement officers cannot force them to do anything that they do not consent to. That assumption may be true in most cases, yet not when it applies to situations where one is suspected of driving under the influence of alcohol or drugs. When one becomes licensed to drive in California, he or she essentially enters into a contract with the state that stipulates, in exchange for the privilege of driving, he or she agrees to submit to chemical testing to confirm whether or not he or she may be impaired. 

The terms of this contract (known legally as the “implied consent law”) can be found in Section 23612 of the California Vehicle Code. It classifies chemical testing as being a measurement of any of the following: 

  • Blood
  • Breath
  • Urine

When most think of a breath test, they often believe it to be those performed using the hand-held breathalyzer devices used by police when conducting a roadside sobreity screening. However, such screenings do not meet the standard of a chemical test. According to the California Department of Motor Vehicles, these roadside tests are referred to as preliminary alcohol-screenings. 

While a PAS test does measure the alcohol content of one’s breath, it differs from a chemical breath test in that the latter is performed in a controlled environment (typically a police station), thus eliminating the potential of external factors influencing the outcome. California’s implied consent law does allow one to refuse such a screening. In fact, the law stipulates that an officer must inform one suspected of DUI of his or her right to refuse a PAS test. A failure to do so could invalidate a result as evidence due to it being obtained illegally. 

Understanding why some recommend refusing a breath test

Many in Encino likely know that by refusing to submit to a breathalyzer test after having been stopped by law enforcement officials, one could face serious consequences. Such a choice will likely result in one’s arrest, followed by a license revocation, as well as fines and potentially imprisonment. Yet there are still some legal experts who recommend that people refuse such tests. This may prompt one to question why?

Yet first things first: Why is one compelled to take a sobriety test upon request? Implied consent laws basically state that by the mere act of driving, one agrees to submit to chemical testing to the check his or her level of suspected impairment. According to California’s implied consent law (which can be found in Section 23612 of the California Vehicle Code), a refusal to submit to such testing will result in one’s license automatically being suspended for one year. That time increases to two and then three years for any subsequent refusals within a 10-year period.

However, the law also goes on to state that one arrested for driving under the influence has the right to determine which form of testing he or she would prefer: blood or breath. Research data shared by the online media company Attn: shows that several elements can influence the outcome of a breathalyzer test, including:

  •          Breath interacting with mucous in the throat
  •          Differing lung capacity
  •          Obstructive lung diseases such as asthma, emphysema, and chronic bronchitis
  •          Anxiety and stress
  •          The use of mouthwash or cough drops

Each of these factors can call into question the accuracy of a breathalyzer test. Thus, a blood test may provide a much more accurate measurement (along with potentially sparing one from being charged with driving while intoxicated if it comes in at below .08 percent).  

How accurate are breathalyzer tests?

Almost everyone in Encino (whether they do or do not drink) recognizes the number .08 as being the threshold for one’s blood alcohol content in order for him or her to be considered legally drunk. That knowledge has no doubt come from the various advertisements released through popular media showing law enforcement officers performing roadside breath tests. Yet have you ever wondered exactly how accurate breathalyzer devices truly are?

Law enforcement officials may have you believe that they are failsafe, and that any reading above .08 is ironclad proof that you are too intoxicated to drive an automobile. That is the reason why such a measurement virtually guarantees that you will be arrested for DUI after registering that reading at a checkpoint or after having been pulled over. There is a reason, however, that a confirmatory blood test is later taken to prove your BAC. The question is how big is the discrepancy between those results and a breathalyzer reading?

Research data shared by the National Motorists Association shows that breathalyzer readings can have up to a 50 percent margin of error when compared to your actual BAC. That means that registering a reading of .08 could actually indicate that your BAC could be as high as .13, or as low as .03.

If you do produce a lower measurement in a subsequent blood test, some may argue that it simply means your body has metabolized the alcohol. However, such a wide margin of error could help you in arguing that your BAC may not have actually been above the legal limit at the time of your arrest. While this information should not be considered to be legal advice, it may help in influencing your decision as to whether or not to refuse a breathalyzer test

How long will I lose my license for refusing a chemical test?

If a law enforcement official accuses you of driving under the influence and asks you to take a chemical test, such as a breath or blood test, you may face a number of consequences if you refuse. In Encino, and communities throughout California, you may lose your driving privileges if you find yourself in this position. However, there are a number of factors that will have an impact on the amount of time your license will be revoked.

According to the Department of Motor Vehicles, drivers who have three or more previous offenses involving chemical test refusal during the past 10 years on their record will have their license revoked for three years. However, those charged with refusing to submit to a chemical test for the second time in the previous decade will have their license revoked for two years, while those charged for the first time will have their driver’s license suspended for one year. It is also important to point out that the penalties are the same for drivers facing these charges who are under the age of 21.

If you are facing charges related to drunk driving or refusing to take a breath test, you may have a variety of concerns and be unsure of which steps to take. However, you should carefully examine the details of your circumstances and recognize your rights. You should also understand that this post is not legal advice and was put together to shed light on the penalties associated with breath test refusal.

What happens when you refuse a breath test in California?

If you choose to climb behind the wheel of a vehicle after spending a night out on the town, you run the risk of getting pulled over by a California law enforcement officer. In order to evaluate a driver’s blood alcohol content level, the officer may ask you to submit to a roadside breath test. Breath tests measure the amount of alcohol that is present in a breath sample and converts that amount to a blood alcohol content level. Drivers who are found to have elevated BAC levels that read over the legal limit of 0.08 percent may be arrested and charged with a DUI. These charges come with a number of serious repercussions, including fines, driver’s license suspension and possible jail time.

When you receive your driver’s license, you agree to submit to a urine, blood or breath test if a law officer asks you to do so, according to the State of California Department of Motor Vehicles. You must perform the test when and where the officer asks and are not permitted to speak with an attorney beforehand. Despite these terms, an officer cannot physically force you to submit a breath sample and you can refuse to participate in the test. However, it is important that you know the consequences of refusing a breath test. Even if you are not driving with a BAC level that is at or above the legal limit, you will be arrested for refusing to submit to a breath test. In addition, your driver’s license will be revoked and suspended immediately for a specific period of time.  

This information is intended for educational purposes and should not be taken as legal advice.