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Should I Refuse a Breath Test in a CA DUI?

As Orange County DUI attorneys, we get asked this one question all of the time, “Should I take a breath test or not?” If you’re wondering the same thing, continue reading as we set the record straight.

Say for example, someone is driving after having several drinks. They know they are intoxicated and are pretty sure that they would fail a breath test.

Suddenly, they notice a cop in their rear-view mirror and they are pulled over on suspicion for driving under the influence (DUI). Now, they are wondering if they should submit to a breath or blood test or not. What’s the best thing to do?

You Do Not Have to Take the PAS Test

For starters, we’re going to take a look at the Preliminary Alcohol Screening (PAS) test. The PAS test is the roadside breath test, the “handheld breathalyzer” test.

Under California law, you do not have to take the PAS test. BUT, if you are arrested for DUI, under California law, you are REQUIRED to take a chemical test, which is normally a blood or breath test.

We find that there is a lot of confusion between the pre-arrest PAS test, and the post-arrest breath test that is taken down at the station. So, it’s important to know the difference between the two.

Taking a Chemical Test After an Arrest

Essentially, if you are asked to take the roadside PAS test, decline to do it, but if you are arrested for DUI and taken down to the station, we suggest that you choose the breath test over the blood test. We tell people to do this all the time. If people think their BAC is likely .08% or more, the breath test is better because it’s easier to challenge than a blood test.

If you refuse to take a chemical test after being arrested, you will be subject to an enhanced license suspension period. For a first refusal, it’s an automatic one year license suspension. If you have a prior DUI with a refusal, it’s a two-year revocation.

Generally, people cannot get a restricted license (hardship license/critical need license) if they refused to take a chemical test. But if they took the blood or breath test after the arrest, they would be able to ask for a restricted driver’s license that allows them to drive to work and/or school.

We hope this clears up a few questions. If you are facing DUI charges in Orange County, contact the Law Offices of Virginia L. Landry, Inc. for a free consultation!