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Can I Legally Refuse a Breathalyzer Test?

By San Diego Attorney on January 18, 2016

Getting pulled over by a police officer can be intimidating and scary—especially when they start to ask you whether or not you’ve had anything to drink. When you’ve been suspected of DUI, one of the pounding questions you will face is whether or not you can refuse a breathalyzer test.

In California, there is what is known as “implied consent”. What does this mean for you as a driver? If you signed your driver’s license and are legally able to drive a motor vehicle, you have already given consent to be subject to chemical or breath testing. But does this give police officers the blanket right to request a breath test from you? Let’s take a closer look at what it means to refuse.

When Do Officer’s Use Breathalyzers?

Breathalyzer tests are done to help determine the blood alcohol centration of an individual, or BAC. This gives law enforcement more insight on how intoxicated a person may be, regardless of impairment. If they are over the legal limit (.08), they may be arrested for DUI and brought in for further testing and questioning. However, these tests are not 100% accurate.

There is a catch to your arrest—police can only request that you take a breathalyzer test if you have been legally pulled over or arrested for suspected DUI. If you’ve been pulled over without probable cause to suspect DUI, they may have violated your rights.

What can help them develop reasonable suspicion?

  • Speeding or any other reckless driving behaviors
  • Slurred speech, red eyes, alcohol smell on the breath
  • Strange, jittery, or sleepy behavior
  • A driver’s own statement that they were drinking
  • Evidence from field sobriety tests

What Happens if I Refuse a Test

Refusing to take a breathalyzer test after being arrested for suspected DUI could be used against you in court according to California Vehicle Code §23612. More than that, you face additional penalties that will be compounded with your DUI penalties.

Keep in mind, this doesn’t include the use of a breathalyzer test when an officer is attempting to establish reasonable suspicion in order to arrest you. You have the right to refuse the test if the police officer doesn’t have probable cause to test you.

However, if you try to refuse a test when a San Diego officer does have probable cause for DUI, you face an automatic license suspension for up to a year, regardless of whether your BAC was above the legal limit or not. Also, a two-year license revocation may be enforced if you have had a previous DUI conviction in the last 10 years.

What Should I Do After Being Pulled Over?

It will most likely be in your best interest to agree to the breathalyzer test. Regardless, it is crucial that you talk to a San Diego DUI lawyer as soon as possible. You could be facing serious penalties and consequences in both situations, and a lawyer knows how to handle such matters.

When you turn to JD Law for counsel, you get much more than just a San Diego defense attorney. You get a lawyer who is a board certified criminal law specialist and a former law enforcement officer. He has decades of experience and can utilize his insight to craft a strong case on your behalf. Don’t trust your future to just any defense attorney in San Diego—trust James N. Dicks.


Reach out to the firm today at (760) 630-2000 for a free consultation.


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A note from James N. Dicks:

Although COVID-19 has caused great uncertainty, we want to assure that our firm is operating remotely to accommodate all current, past, and future clients in need of any of our services. The best way to communicate with us is by telephone (760) 630-2000 or email info@jdlaw.law.

Currently San Diego Superior Courts are closed but are set to reopen on Tuesday May 26th, 2020 barring any
future orders.

Do not hesitate to contact us with any questions. Sending our thoughts and best wishes to you and your family. Please follow us on Facebook for any future updates.


Aunque COVID-19 ha causado una gran incertidumbre, queremos asegurarles que nuestra oficina esta operando de forma remota para todos los clientes actuales, pasados y futuros que necesiten alguno de nuestros servicios. La mejor manera de comunicarse con nosotros es por teléfono (760) 630-2000 o por correo electrónico a info@jdlaw.law.

Los Tribunales Superiores de San Diego están cerrados, pero están programados para reabrir el martes 26 de mayo de 2020, salvo una nueva orden.

No dude en contactarnos si tiene alguna pregunta. Estamos enviando nuestros pensamientos y mejores deseos para usted y su familia. Síganos en Facebook para seguir siendo informado de novedades nuevas.


James N. Dicks
jD LAW, P.C.

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COVID-19 Announcement

Although COVID-19 has caused great uncertainty, we want to assure that our firm is operating remotely to accommodate all current, past, and future clients in need of any of our services. The best way to communicate with us is by telephone (760) 630-2000 or email info@jdlaw.law. Do not hesitate to contact us with any questions. Sending our thoughts and best wishes to you and your family.


Aunque COVID-19 ha causado una gran incertidumbre, queremos asegurarles que nuestra oficina esta operando de forma remota para todos los clientes actuales, pasados y futuros que necesiten alguno de nuestros servicios. La mejor manera de comunicarse con nosotros es por teléfono (760) 630-2000 o por correo electrónico a info@jdlaw.law. No dude en contactarnos si tiene alguna pregunta. Estamos enviando nuestros pensamientos y mejores deseos para usted y su familia.

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