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Refusing a breath test could have consequences, but not always

On Behalf of | Apr 15, 2020 | Firm News |

At a DUI traffic stop, it is important to know exactly what your rights are – and how your choices can affect your freedom. The wrong move could make a difficult situation worse.

Breath and chemical testing are among the most commonly misunderstood parts of the DUI process. Some drivers assume that they must always comply with police officers’ requests. Other drivers may assume that they have the right to deny testing, but they might not understand what a refusal really means.

When refusal does and does not carry penalties

If San Diego police or state troopers instruct you to submit to a chemical test for DUI, opting out is not simple. California’s “implied consent” law means that all drivers accept that they will comply with chemical tests, including blood tests, as appropriate.

If you refuse chemical testing, therefore, the state will automatically suspend or revoke your drivers’ license. The penalties of refusing a chemical test depend on the circumstances, including prior DUIs. You could lose your license for as long as three years.

However, breath tests typically fall into a different category: Preliminary Alcohol Screening (PAS). You can opt to refuse a PAS test unless you are under arrest, younger than 21 years old or on probation for a DUI offense. If you are in one of these categories, however, refusing a breath test will result in penalties.

Police do not always have justification to conduct testing

At the traffic stop, the officer should explain the penalties for refusal according to the situation. Furthermore, law enforcement cannot conduct chemical testing by force unless they have a warrant.

If the traffic stop or test administration was unlawful, the court could dismiss the results of the breath test. One possible DUI defense argument is that the police did not have probable cause to pull you over or test you in the first place.

In the moment, however, many drivers do not have the legal training to determine whether the officer is fully respecting their rights. It is important to take note of everything that happens at the traffic stop and consider your decisions carefully.

It is risky to make any assumptions about your case without first discussing the facts with your attorney. Whether you refuse or submit to testing, make sure that you know your legal rights and options beforehand.

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