Should I Refuse a Breath Test?
California DUI laws don’t play around. Refusing a breath test might feel like standing up for your rights, but it also slaps you with a whole new set of legal headaches—some you probably didn’t see coming. You could be trading one problem for a stack of others.
So, what should you do if you’re pulled over and asked to blow into that little tube? The answer isn’t as simple as you think, and making the wrong move could impact your freedom, your finances, and your ability to drive.
If you’re staring down DUI charges, don’t guess your way through it. Call The Rodriguez Law Group at (213) 995-6767 and get the guidance of an experienced Los Angeles DUI lawyer to fight back.
California’s Implied Consent Law: What It Is & How It Works
The moment you get your California driver’s license, you’re not just signing up for the privilege of hitting the road. You also agree to play by the state’s DUI rules—whether you realize it or not.
California’s implied consent law, codified under California Vehicle Code Section 23612, binds every licensed driver to submit to a chemical test if lawfully arrested on suspicion of DUI.
What Is Implied Consent?
At its core, implied consent means you’ve already agreed to testing without explicitly saying so. Lawmakers put this in place to discourage drunk driving and to make it harder for offenders to dodge accountability. But here’s the twist: this agreement only kicks in after a lawful arrest.
Before an officer arrests you, they might offer a preliminary alcohol screening (PAS) test. These handheld breath tests are usually done at the roadside, especially for drivers under 21 or on probation for DUI.
The good news? You’re not legally obligated to take a PAS test unless you’re in one of those two categories. Refusing it pre-arrest doesn’t invoke the same consequences as refusing a test after you’re in cuffs.
When Does Implied Consent Apply?
Once you’re arrested for suspected DUI, the rules shift. The officer must inform you of the implied consent law, including the penalties for refusing a chemical test.
At this point, refusing isn’t a bold or smart move—it’s one with automatic legal consequences.
- Post-Arrest Tests: You must take either a breath or blood test. Urine tests are rare and typically only offered when breath and blood tests aren’t available.
- Lawful Arrest Requirement: If the officer didn’t have probable cause to arrest you, implied consent doesn’t hold up. This means you might challenge the arrest itself if it lacked sufficient legal grounds.
Why Does Implied Consent Exist?
California lawmakers didn’t pull this law out of thin air. It’s designed to balance individual rights with public safety. Drunk driving puts lives at risk, and implied consent laws streamline the process of collecting evidence to prosecute offenders. It’s not perfect—some drivers claim it infringes on their rights—but the courts repeatedly uphold these statutes to deter impaired driving.
Implied consent laws force you into a decision: comply and provide potentially incriminating evidence, or refuse and face automatic penalties. Either way, the stakes are high.
Consequences of Refusing a Breath Test in California
Refusing a breath test sets off a chain reaction of penalties. These consequences hit hard, starting with your driving privileges and spilling over into your criminal record.
Immediate License Suspension
The first hammer to drop comes from the Department of Motor Vehicles (DMV). Under California Vehicle Code Section 13353, refusing a post-arrest chemical test results in an automatic suspension of your license for one year.
This isn’t tied to whether you’re ultimately convicted of DUI—it’s a separate administrative penalty.
- First Offense: One-year suspension with no opportunity for a restricted license.
- Second Offense (within 10 years): Two-year suspension, escalating to three years for a third offense.
- No Restricted License Options: Refusal eliminates the possibility of a restricted license, making it illegal to drive to work, school, or anywhere else during the suspension.
Criminal Penalties Add Up
If the DUI case against you moves forward and you’re convicted, your refusal adds more weight to the sentence.
California courts impose harsher penalties for defendants who refuse chemical tests, as outlined in California Vehicle Code Section 23577.
- Additional jail time—up to 48 extra hours for a first offense, with longer durations for repeat offenses.
- Higher fines, which stack on top of the standard DUI penalties.
- Mandatory alcohol education or treatment programs, with longer durations compared to cases without refusals.
Refusal enhancements don’t replace the standard DUI penalties—they’re added to them, making the consequences far more severe.
Evidentiary Consequences in Court
Refusing a breath test doesn’t mean the prosecution has nothing to work with. In fact, it might hand them a tool to argue against you.
Prosecutors use refusals to imply the consciousness of guilt, suggesting that you declined testing because you knew you were over the limit.
- Implied Guilt: The refusal itself becomes admissible evidence under California Evidence Code Section 1220.
- Strengthening the Case: Without a BAC result, the prosecution might lean heavily on field sobriety test results, officer testimony, and any physical signs of impairment.
By refusing, you don’t make the case disappear—you create a legal narrative that prosecutors can spin in their favor. This tactic frequently works, particularly with juries unfamiliar with the nuances of DUI law.
Situations Where Refusing Might Seem Beneficial
While the risks are steep, certain scenarios might make refusal feel like the least damaging option. But this decision is far from foolproof—it hinges on the circumstances, the evidence available, and the legal strategies in play.
Lack of Concrete Evidence
When you refuse a breath test, you deny law enforcement one of the most damning pieces of evidence: your exact blood alcohol concentration (BAC). Without a BAC reading, the prosecution must lean on less precise indicators of intoxication.
- Subjective Observations: Officers may testify about slurred speech, unsteady movements, or the odor of alcohol. While these observations carry weight, they’re less definitive than a BAC result.
- Field Sobriety Tests: These tests, like walking in a straight line or standing on one leg, are highly subjective. Factors like nerves, poor lighting, or medical conditions can skew results in your favor during a legal challenge.
This lack of hard data forces the prosecution to build its case on circumstantial evidence, which isn’t always strong enough to secure a conviction.
Avoiding Self-Incrimination
Breath test results don’t lie—assuming the device is functioning correctly. For someone who believes their BAC is over the legal limit, refusing the test might feel like the lesser evil.
After all, a refusal means there’s no scientific number to lock you into a DUI conviction.
- Minimizing Evidence: Without a test, you eliminate the possibility of a recorded BAC above 0.08%, which the law presumes is proof of impairment under California Vehicle Code Section 23152(b).
- Challenging the Arrest: By refusing, you may shift the focus to the legality of the arrest itself. If the arresting officer lacked probable cause, your attorney could argue that the refusal penalties—and any subsequent DUI charges—are invalid.
Legal and Practical Risks of Refusal
Even in situations where refusal seems strategic, the move doesn’t come without risks. Courts view refusals skeptically, especially if the case already includes damning circumstantial evidence.
Refusal is less about beating the system and more about weighing your options in a high-stakes moment. While it might limit the evidence against you, it also invites its own set of legal challenges and potential penalties. It’s a gamble with no guaranteed outcome.
Mandatory Blood Draws
California law allows law enforcement to obtain a warrant for a blood draw if you refuse a breath test.
Judges frequently approve these warrants, and officers carry them out quickly.
- Time-Sensitive Warrants: Obtaining a warrant can happen within minutes, especially with digital systems designed to expedite the process.
- No Avoidance: A blood draw provides the same BAC evidence as a breath test, meaning your refusal won’t erase the prosecution’s strongest piece of evidence.
- Forcible Testing: Under Schmerber v. California (384 U.S. 757), police can perform a blood draw without your consent if a warrant is in place, using reasonable force if necessary.
The practical result? Refusal rarely prevents BAC evidence from entering the case. Instead, it prolongs the process and may harden the prosecution’s stance against you.
Ineligibility for a Restricted License
Losing your license is bad enough, but refusing a chemical test removes the possibility of obtaining a restricted license—a lifeline for many people. Under California’s administrative per se rules, drivers who refuse testing are not eligible for restricted driving privileges.
- Restricted License Benefits: Drivers who comply with testing may qualify for restricted licenses, which allow travel to work or school.
- Zero Flexibility: Refusal leaves you with no legal option to drive during your suspension, which can severely impact your daily life.
This additional penalty underscores California’s harsh stance against refusal, treating it as an obstacle to public safety.
Increased Scrutiny from Prosecutors
Refusing doesn’t just put you on the wrong side of the law—it puts a spotlight on your case. Prosecutors often view refusal as a challenge and work harder to secure convictions in these cases.
- More Aggressive Strategies: Without a BAC result, prosecutors may push harder on circumstantial evidence, using officer testimony, dashcam footage, and field sobriety test results.
- Judicial Bias: Some judges interpret refusals as an attempt to obstruct justice, potentially influencing sentencing decisions if you’re convicted.
How We Help
Facing DUI charges feels like the ground has shifted beneath you. It’s not just the penalties—it’s the confusion, the legal jargon, and the feeling that the system is stacked against you. That’s where we step in.
Building a Defense That Works for You
Every DUI case is unique, and cookie-cutter approaches don’t cut it. We start by peeling back every layer of your case, looking for opportunities to challenge the charges. Did the officer have a legitimate reason to pull you over? Was your arrest conducted lawfully?
Exposing Flaws in Evidence
Breath tests and field sobriety tests aren’t as airtight as they might seem. Machines fail, calibration records are incomplete, and environmental factors—like medications or medical conditions—can skew results.
We scrutinize every piece of evidence to find weak spots. If the prosecution’s case rests on shaky ground, we ensure the court knows about it.
Keeping You Behind the Wheel
The DMV’s administrative penalties move fast. Refusing a chemical test or being arrested for DUI kicks off a process to suspend your license. This happens separately from the criminal case, and fighting it requires knowing exactly how the DMV operates. We represent you in these hearings, giving you a shot at keeping your driving privileges intact while we tackle the criminal charges.
Fighting for the Best Outcome
Sometimes, going to trial isn’t the best option. If the evidence doesn’t favor you, we negotiate with the prosecution for reduced charges or alternative sentencing options. This could mean avoiding jail time through probation, enrolling in a diversion program, or reducing the DUI to a lesser offense with fewer long-term consequences.
When trial becomes unavoidable, we prepare for it with precision and strategy. We handle everything—from selecting a jury to presenting your case—so you’re not facing the courtroom alone.
Making the Process Manageable
DUI charges come with uncertainty, stress, and fear of what’s next. We make sure you never have to wonder where your case stands. Whether it’s answering questions, explaining options, or preparing you for each stage of the process, we keep you informed and prepared.
Let’s Fight For Your Future
Ambrosio E. Rodriguez, Los Angeles DUI Lawyer
No one plans for a DUI arrest, but that doesn’t mean the system has to steamroll you. With the right strategy, the right challenges, and the right representation, you don’t have to face it alone—or without hope.
Call (213) 995-6767 today—together, we’ll take decisive action to protect your future.
Our Locations
Los Angeles Office 626 Wilshire Blvd Suite 460 Los Angeles, CA 90017
