Table of Contents
Quick Summary
In California, refusing a breathalyzer after a DUI arrest has serious legal and administrative repercussions. Under the state’s implied consent law, drivers implicitly agree to chemical testing when they are lawfully arrested on suspicion of DUI. Refusing the test triggers license suspension, fines, and potentially enhanced criminal penalties, including jail time. Legal defenses can challenge these sentences, focusing on procedural issues or specific exemptions. Acting quickly—by consulting a DUI attorney and requesting a DMV hearing within 10 days—can help manage these penalties, offering the best chance to protect driving privileges and mitigate charges.
If you’re stopped on suspicion of DUI in California, you might ask, “Can I refuse a breathalyzer test?” Technically, yes—but refusal comes with consequences. Under California’s implied consent laws, any driver pulled over for DUI has already agreed to chemical testing if arrested. Refusing leads to immediate license suspension and potentially severe criminal penalties, affecting both your driving privileges and court case.
What Is California’s Implied Consent Law?
California’s implied consent law, found in Vehicle Code § 23612, requires any driver lawfully arrested for suspected DUI to complete a chemical test, usually a breath or blood test. By driving on California roads, drivers automatically agree to this testing if arrested for DUI. The law aims to support DUI enforcement and public safety by ensuring accurate checks of alcohol or drug levels in suspected DUI cases.
Once arrested, drivers are required to complete one of the available chemical tests, either breath or blood or a urine test if the other options are unavailable. Refusing to take any of these tests after an arrest triggers legal penalties, such as an automatic driver’s license suspension.
Types of Breath Tests: Preliminary vs. Post-Arrest Chemical Tests
During a DUI stop in California, drivers may encounter two types of breath tests: a preliminary alcohol screening or a mandatory post-arrest testing.
Preliminary Alcohol Screening (PAS)
The preliminary alcohol screening (PAS) test is a handheld breathalyzer used at the roadside to check for intoxication. The PAS test is optional for most drivers and primarily establishes probable cause for a DUI arrest. However, drivers under 21 or on DUI probation are required to take this test, and refusal in these cases can bring immediate consequences.
Mandatory Post-Arrest Testing
Once under arrest for DUI, California law mandates that drivers choose either a breath or blood test (or urine if the other tests aren’t available). This test is a requirement under California’s implied consent law, and refusal triggers automatic penalties, including license suspension and possible criminal charges.
Consequences of Refusing a Breathalyzer Test in California
Under state law, both administrative and criminal penalties apply, affecting driving privileges, court proceedings, and finances. Here’s how a refusal impacts each area.
Administrative Penalties (License Suspension)
Refusing a breathalyzer after an arrest leads to automatic penalties from the California DMV, which include:
- First Refusal: One-year license suspension.
- Second Refusal (within 10 years): Two-year suspension.
- Third or Subsequent Refusal (within 10 years): Three-year suspension.
Drivers who refuse a post-arrest test cannot receive a restricted or hardship license for the suspension period, resulting in a complete loss of legal driving privileges during this time.
Criminal Penalties and Enhanced DUI Sentences
In court, refusal is often seen as a sign of “consciousness of guilt,” Refusal can lead to:
- First Offense: Added jail time and longer DUI education requirements.
- Subsequent Offenses: Increased jail time, higher fines, and extended DUI programs.
Legal Defenses and Possible Exemptions
Depending on the case, defense attorneys might question the validity of the arrest, cite medical exemptions, or raise procedural issues related to how the test was administered. Here are some potential defenses.
Challenging Probable Cause and Officer Conduct
Defense attorneys may question whether the DUI stop and arrest met legal standards, including probable cause and proper procedures, as failing to meet these standards may reduce or dismiss test refusal consequences.
Medical and Situational Exemptions
Certain medical conditions can exempt drivers from a breath test. For example, individuals with hemophilia or those taking anticoagulant medications may not be able to safely take a blood test. In these cases, a defense might argue that the test offered was unreasonable and that alternative testing options should have been offered.
Procedural Defenses
California’s Title 17 regulations establish strict requirements for chemical testing, including equipment calibration, operator training, and a mandated observation period before the test. If these procedures weren’t followed, the reliability or admissibility of the test results may be challenged in court.
What to Do After Refusing a Breath Test
Refusing a breath test in California triggers immediate legal and administrative actions. While refusal comes with automatic penalties, acting quickly can help you manage the situation.
5 Steps Following Refusal
- Contact a DUI Attorney Immediately: Reach out to a DUI attorney right away. They’ll guide you through each critical step and keep you on track with deadlines.
- Understand the 10-Day DMV Hearing Window: Your attorney will help you request a DMV hearing within 10 days to contest the automatic suspension. Missing this deadline means losing the opportunity to challenge the suspension, resulting in an automatic loss of driving privileges.
- Request the DMV Hearing: Working with your attorney, submit the DMV hearing request to start the process officially. Timely filing is essential to preserving your right to contest the suspension.
- Gather Documentation and Evidence: Collect documentation related to your arrest, including details on the officer’s conduct and any procedural issues. Your attorney will help identify useful evidence that could strengthen your case.
- Prepare for the DMV Hearing: Your attorney will prepare for the hearing by reviewing evidence, subpoenaing additional evidence, and planning how to present your case effectively. Good preparation can improve your chances of a favorable outcome.
Navigating DMV and Court Proceedings
A skilled DUI attorney can represent you in both DMV hearings and court, addressing procedural errors and building a strong defense. This often involves collecting records of any procedural missteps during the arrest. Having legal representation is essential for managing the administrative and legal aspects of refusing a breath test.
Taking the Next Steps In San Diego County After Refusing a Breath Test
Refusing a breath test in San Diego County can lead to swift and potentially enduring impacts, ranging from license suspensions to criminal charges. While this can feel overwhelming, taking swift action can make a real difference in your case. Working with an experienced San Diego DUI attorney is crucial to managing the complexities of DMV hearings and court proceedings. A skilled attorney will work to protect your rights, explore defenses, and help minimize the impact on your driving privileges, finances, and future.
Facing a DUI charge is challenging, but you don’t have to go through it alone. A dedicated DUI lawyer like David Rubin can guide you through every step – helping build a strong case, providing the legal expertise needed to secure the best possible outcome, and acting now to forge a smoother path forward. You can schedule a free consultation with Attorney Rubin to discuss your DUI case by calling (619) 719-1087, pressing the live chat button, or filling out an online contact form.

Attorney David Rubin
Attorney David Rubin is a criminal defense and personal injury lawyer based out of Carlsbad, CA. Attorney Rubin serves clients throughout San Diego County and has been practicing law for over a decade. When not working, David can be found surfing, attending CrossFit classes, or eating asado.