Can You Refuse a Breathalyzer in California? DUI Refusal Explained
The short answer: it depends on which test. In California there are two different breath tests in a DUI stop, and the rules are opposite. The roadside preliminary alcohol screening test, usually called the PAS test, is voluntary for most adult drivers, and you can politely decline it. The chemical test after a lawful DUI arrest, whether breath or blood, is covered by California's implied consent law in Vehicle Code section 23612, and refusing it triggers a one-year license suspension for a first offense under Vehicle Code section 13353, extra penalties if you are convicted, and evidence the prosecutor can use against you. This guide explains both tests, what a refusal costs, when officers can draw blood anyway, and how refusal cases are defended in Riverside, San Bernardino, Los Angeles, and Orange County courts.
The Two Breath Tests in a California DUI Stop
The roadside PAS test is an investigative tool. When an officer in Riverside, Victorville, or Santa Ana suspects impairment, they typically ask you to perform field sobriety tests and blow into a handheld preliminary alcohol screening device. Under Vehicle Code section 23612, subdivisions (h) and (i), the officer must tell a driver who is 21 or older and not on DUI probation that the PAS test is voluntary and that declining it does not satisfy the obligation to take a chemical test after arrest. Its purpose is to help the officer decide whether to arrest you.
The post-arrest chemical test is mandatory under implied consent. Once you are lawfully arrested for DUI under Vehicle Code section 23152 or Vehicle Code section 23153, you are deemed to have consented to a breath or blood test. You generally get to choose between breath and blood, but if the officer suspects drugs, breath cannot measure them and you will be asked for blood. This evidentiary test, done on a calibrated machine at the station or a blood draw by a technician, is the one that produces the number in the complaint.
Field sobriety tests are also voluntary. The walk-and-turn, one-leg stand, and eye test are not required by any statute, and declining them politely is lawful. Officers rarely tell you that. Everything you say and do during the stop is recorded on body camera, so the way you decline matters as much as the decision, and our guide to what not to say to police applies from the moment the lights come on.
Who Cannot Refuse the PAS Test
Drivers under 21. Under Vehicle Code section 23136, a driver under 21 who is lawfully detained for suspected drinking is deemed to have consented to a PAS test or other chemical test to measure alcohol, and refusing it results in a license suspension through the DMV even though the zero-tolerance offense itself is a civil matter. A student at UC Riverside or Cal State San Bernardino who declines the PAS test can lose the license for a year on the refusal alone.
Drivers on DUI probation. Under Vehicle Code section 23154, a person on probation for a prior DUI who is lawfully detained is deemed to have consented to a PAS test, and the 0.01 percent probationary limit applies. If you are on DUI probation in Riverside County or San Bernardino County, the probation terms almost always require you to submit to any chemical test an officer requests, and refusing can be a probation violation on top of the DMV action. Our guide to probation violation hearings explains what happens next.
What Happens When You Refuse the Chemical Test After Arrest
The officer must read the refusal admonition. Before a refusal counts, the officer is required to advise you that failure to submit will result in a fine, mandatory jail if you are convicted of DUI, and a suspension or revocation of your driving privilege for one, two, or three years depending on your record, as set out in Vehicle Code section 23612. The officer must also tell you that you do not have the right to talk to a lawyer before deciding and that the choice of test is yours. Whether the admonition was read, read completely, and understood is the first thing a DUI lawyer checks in a refusal case.
Silence, stalling, and conditions are treated as refusals. You do not have to say the word "no." Asking repeatedly to call a lawyer first, agreeing to a test and then failing to blow properly, demanding a test the officer cannot provide, or saying you will take a test only at a hospital of your choice can each be treated as a refusal. California courts have long held that a driver must give a clear and unconditional consent, and a refusal that is later withdrawn generally still counts.
The DMV suspension for refusal is longer than for a failed test. Under Vehicle Code section 13353, a first refusal results in a one-year suspension, a refusal with one prior DUI or wet reckless conviction within ten years results in a two-year revocation, and a refusal with two or more priors results in a three-year revocation. By comparison, a first-offense failed test with a 0.08 result carries a shorter suspension with restricted license options. Refusal suspensions historically have not been eligible for a restricted license during the first year, which is the single most expensive consequence for a commuter in Victorville, Moreno Valley, or Corona.
You still have ten days to request a DMV hearing. The refusal suspension is an administrative action, and you must request a hearing within ten days of the arrest under Vehicle Code section 13558 or the suspension takes effect automatically. In a refusal hearing, the DMV must show that the officer had reasonable cause to believe you were driving under the influence, that you were lawfully arrested, that you were properly admonished, and that you refused or failed to complete the test. Our DMV hearing guide walks through the hearing, and each of those four issues is a place where the suspension can be set aside.
Criminal penalties increase on conviction. If you are convicted of DUI and the court finds you refused, Vehicle Code section 23577 requires additional jail time beyond what a non-refusal first offense would carry, the required DUI program is longer for refusal cases, and Vehicle Code section 23578 directs the court to treat refusal as a special factor at sentencing. Prosecutors in Riverside and San Bernardino County also tend to withhold wet reckless offers in refusal cases, which we explain in our wet reckless guide.
Refusal is evidence of consciousness of guilt. The jury can be told that you refused and can consider the refusal as evidence that you knew you were impaired. The defense can respond with the reasons for the refusal, such as confusion, a medical condition, a language barrier, or an incomplete admonition, but the prosecutor will use it in closing. This is why a refusal does not make a DUI case go away, and it often makes the case harder, not easier.
Can Police Take Your Blood Anyway?
Breath tests do not require a warrant; blood tests usually do. In Birchfield v. North Dakota (2016) 579 U.S. 438, the United States Supreme Court held that a breath test may be administered as a search incident to a lawful DUI arrest without a warrant, but a blood test is more intrusive and generally requires a warrant or an exception. The Court also held that a state may not make it a crime to refuse a warrantless blood test, although it may impose civil and evidentiary consequences for refusing.
Officers now get electronic warrants quickly. After Missouri v. McNeely (2013) 569 U.S. 141, which held that the natural dissipation of alcohol does not by itself create an emergency that excuses a warrant, agencies in Riverside and San Bernardino County built telephonic and electronic warrant procedures. In practice, a driver who refuses at the Robert Presley Detention Center in Riverside, the West Valley Detention Center in Rancho Cucamonga, or the High Desert Detention Center in Adelanto will often have blood drawn under a warrant within an hour or two. The refusal still counts for DMV and sentencing purposes even though the state ends up with a blood result.
Unconscious drivers. In Mitchell v. Wisconsin (2019) 139 S.Ct. 2525, the Court held that when a driver is unconscious and must be taken to a hospital, the exigent circumstances exception almost always permits a warrantless blood draw. California courts have applied similar reasoning to drivers who are unconscious after a collision, which arises in felony DUI cases under Vehicle Code 23153 on the 15 near Hesperia and the 10 through Fontana.
Forced blood draws can be challenged. A blood draw done without a warrant and without a valid exception, done by someone who was not qualified, or done in an unreasonable manner can be suppressed under Penal Code section 1538.5. The foundational case, Schmerber v. California (1966) 384 U.S. 757, requires that the draw be performed in a reasonable manner by medical personnel. Our 1538.5 motion guide explains how the motion works.
How DUI Refusal Cases Are Defended
Attack the admonition. If the officer skipped the admonition, paraphrased it inaccurately, read it to a driver who could not understand it because of a language barrier or injury, or read it after you had already been treated as refusing, the refusal allegation can fall apart at the DMV and in court. Body camera footage and the DS-367 form the officer completes are the key documents.
Show that the arrest was unlawful. A refusal only counts after a lawful arrest. If the stop lacked reasonable suspicion, if the stop was prolonged in violation of Rodriguez v. United States (2015) 575 U.S. 348, or if the officer lacked probable cause to arrest, both the DMV action and the criminal case are vulnerable. Read Can Police Search Your Car? for the stop and search rules.
Show that there was no actual refusal. Medical conditions such as asthma or a broken jaw can make a valid breath sample impossible, and a driver who tried in good faith and asked for a blood test instead did not refuse. Confusion caused by a head injury in a collision case is another recognized issue. The officer's own narrative often shows the driver was willing to take a test the officer chose not to provide.
Fight the underlying DUI. Without a chemical result, the prosecution must prove impairment under Vehicle Code section 23152, subdivision (a), through driving pattern, field sobriety tests, and officer observations. Those cases can be weaker than a 0.08 case, as explained in what makes a criminal case weak, and our Riverside County DUI guide covers the defenses to the impairment theory. If the state obtained blood under a warrant, the defense shifts to the warrant, the draw, the chain of custody, and the lab.
Negotiate with the refusal in mind. Because refusal removes some of the usual offers, resolution often focuses on avoiding the refusal enhancement, obtaining a plea to DUI without the refusal allegation, or securing diversion where available. Military diversion under Penal Code section 1001.80 remains available for misdemeanor DUI for qualifying service members and veterans, including those stationed at Fort Irwin near Barstow or at Twentynine Palms, as explained in our military diversion guide. Our articles on whether to take a plea deal and what happens after a DUI arrest cover the rest of the process.
Should You Refuse the Breath Test? A Realistic Assessment
Declining the PAS test and field sobriety tests is usually sound. For an adult driver not on probation, these roadside tests are voluntary, they are designed to build probable cause, and they rarely help the driver. Declining them politely and calmly is lawful and gives the officer less to write.
Refusing the post-arrest chemical test usually hurts. The one-year suspension without a restricted license, the refusal enhancement, the loss of wet reckless offers, the consciousness-of-guilt instruction, and the likelihood that blood will be drawn under a warrant anyway mean that a refusal rarely improves a first-offense case. The exceptions are rare and fact-specific, and no article can tell you in advance which category you are in.
Hire a DUI lawyer within the ten-day window. The DMV deadline under Vehicle Code section 13558 does not wait for your arraignment, and a refusal hearing is winnable far more often than people expect. Whether your case is at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the Rancho Cucamonga courthouse, the Victorville courthouse, the Van Nuys courthouse, or the Harbor Justice Center in Newport Beach, read our guide to whether you need a lawyer for a first DUI and the companion article for drivers arrested in Ontario, Upland, or Chino.
Frequently Asked Questions
Can I refuse a breathalyzer in California without penalty?
You can refuse the roadside PAS test, but not the post-arrest test. For adult drivers not on DUI probation, the preliminary alcohol screening test is voluntary under Vehicle Code section 23612. Refusing the breath or blood test after a lawful DUI arrest triggers a license suspension under Vehicle Code section 13353 and extra penalties if you are convicted.
How long is the license suspension for refusing a DUI test?
One year for a first refusal. Under Vehicle Code section 13353, a first refusal carries a one-year suspension, a refusal with one prior DUI or wet reckless within ten years carries a two-year revocation, and two or more priors carry a three-year revocation. You must request a DMV hearing within ten days under Vehicle Code section 13558 to contest it.
Can the police force me to give blood if I refuse?
Only with a warrant or a recognized exception. Under Birchfield v. North Dakota, a warrantless breath test is permitted after arrest, but a blood test generally requires a warrant. Officers in Southern California routinely obtain electronic warrants after a refusal, and an unconscious driver may be tested under the exigency rule in Mitchell v. Wisconsin.
Does refusing make my DUI case harder to prove?
Usually not, and it often makes it worse. The prosecutor can present the refusal as evidence of consciousness of guilt, blood is frequently drawn under a warrant anyway, and the court must impose additional penalties under Vehicle Code section 23577 on conviction. A no-result case can still be defended on the impairment theory, but the refusal rarely helps.
Do I have the right to a lawyer before deciding whether to take the test?
No. California's implied consent admonition in Vehicle Code section 23612 specifically advises that you do not have the right to consult an attorney before choosing or taking the test. Insisting on a lawyer first is treated as a refusal. You can and should remain silent about everything else and ask for a lawyer as soon as the test decision is made.
Can a refusal be removed from my DMV record or the case?
Sometimes. If the DMV hearing shows the arrest was unlawful, the admonition was defective, or you did not actually refuse, the suspension is set aside. In court, the refusal allegation can be dismissed as part of a negotiated resolution or defeated at trial, and an acquittal or dismissal of the DUI can support relief on the court side, though the DMV action is separate.
Arrested for a DUI Refusal in Southern California?
Gramling Law Group defends DUI and refusal cases at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the Larson Justice Center in Indio, the San Bernardino Justice Center, the Rancho Cucamonga, Victorville, and Barstow courthouses, the Van Nuys and Pomona courthouses, the Harbor Justice Center in Newport Beach, and criminal courts throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options for DUI cases, including DMV hearing representation. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
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