Should you submit to a request to blow into a portable breath test device? The answer depends upon whether you are under arrest when you are asked to provide a breath sample.
Like most states, California has an implied consent law. Section 23612 of the California Vehicle Code states that a driver “is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for” a DUI.
Sometimes the police will take you the police station after an arrest to administer a breath test. It is becoming increasingly common, however, for the police to administer the implied consent breath test using an Alco-Sensor IV while the driver is still at the roadside. That decision is meant to deprive drivers of the argument that they were “below the limit” while driving but “above the limit” when they were tested later, after alcohol made its way from the driver’s stomach to the driver’s blood.
You can refuse to take a roadside breath test after an arrest, but you risk a longer loss of your driving privileges for refusing than a court would impose if you take the test and are ultimately convicted of DUI. You might also face more severe penalties if you refuse the test and are convicted of DUI.
You could have a better chance of avoiding a DUI conviction if you refuse the test (provided that you also refuse every subsequent request to submit a breath or blood sample) because you will be depriving the prosecution of valuable evidence that you were driving over the limit. On the other hand, if your case goes to trial, the jury will hear that you refused the test. The jury might assume that you refused because you knew you would fail the test.
If this is your first offense, you should probably take the test to minimize the consequences of a refusal on your driving privileges. If you have prior convictions, are facing significant jail time, and value your freedom more than your driving privileges, you might want to refuse the test. The choice is yours to make unless the police order you to submit to a blood test.
If you have not been arrested, the police can ask you to submit to a roadside breath test in order to gain evidence that they can use to make an arrest decision. That test is called a preliminary alcohol screening (PAS) test. If the test result is substantially less than 0.08, the police might let you go. If the test result is near or higher than 0.08, the police will use the result to establish probable cause to justify a DUI arrest.
California law requires the officer to advise you of your right to refuse a PAS test. Some officers are more conscientious about providing that information than others. Some officers make it sound as if the implied consent law applies to a PAS test. It does not.
Whenever an officer asks you to submit to a roadside test, your first question should be “Am I under arrest?” If the officer says you are not under arrest, you are free to refuse the PAS without fear that your refusal alone will result in the loss of driving privileges.
If an officer wants you to submit to a PAS, should you provide a breath sample? If you know you have consumed no alcohol at all, go ahead and do it. Just remember that the officer might arrest you anyway if he or she believes that you were driving under the influence of drugs. Passing the test is no guarantee that you will be allowed to drive away.
Also remember that even if you take the test, you will still be subject to the implied consent law if the officer arrests you. The fact that you took a PAS test does not mean that you have already satisfied the implied consent law since that law only applies to tests requested after an arrest. If you take a PAS test but refuse a breath or blood test after an arrest, you will face a loss of driving privileges based on the refusal.
If you drank alcohol, taking a PAS test before your arrest will likely give the police evidence that can be used against you. Even if you do not feel drunk, your blood alcohol content (BAC) may be near or above 0.08. Since taking the test will rarely benefit you but will often give the police another reason to arrest you, it usually makes sense to refuse a PAS test if you have not been arrested.
Note that there are times when the right to refuse a PAS does not exist, even if you are not under arrest. Those include:
In all other circumstances, refusing the PAS test is almost always the right decision if you consumed any alcohol before you started driving. You might be arrested anyway (and asked to submit to an implied consent test), but you at least prevent the police from obtaining evidence of your BAC that is closer to your time of driving. That in itself might benefit you when you contest the charge.