Refusing a Breath or Blood Test in California: What Implied Consent Means

What implied consent means

Vehicle Code section 23612 provides that a person who drives a motor vehicle in California is deemed to have given consent to a chemical test of their blood or breath to determine alcohol or drug content, if lawfully arrested for driving under the influence. The officer must tell you that refusing, or failing to complete, the test will lead to consequences for your license and can be used against you in court.

If the officer suspects alcohol, you can generally choose between a breath and a blood test. If drugs are suspected, a blood test can be required. According to the DMV, a urine test is only available in narrow situations, for example when blood and breath tests are both unavailable or for certain medical conditions.

The roadside screening test is different

Before an arrest, an officer may ask you to blow into a handheld preliminary alcohol screening (PAS) device. For drivers who are 21 or older and not on probation for DUI, this screening test is generally voluntary, and the officer should tell you so. It is separate from the chemical test after arrest, and declining it does not replace the post-arrest test.

Drivers under 21 and drivers on DUI probation are treated differently. The DMV states that a driver under 21 who refuses or fails to complete a PAS or other chemical test faces a one-year suspension for a first offense.

What a refusal can mean

On the DMV side, the agency states that a driver 21 or older who refuses or fails to complete a blood or breath test faces a one-year suspension for a first offense, and revocations of two or three years for second and third offenses within 10 years. That is longer than the four-month suspension the DMV lists for a first offense with a test result of 0.08% or more. According to the DMV, the optional ignition interlock restriction that lets many drivers keep driving after an arrest is offered for non-refusal cases.

In the criminal case, a refusal can be presented as evidence, and if you are convicted of DUI the court can impose additional consequences for the refusal. Officers can also seek a warrant for a blood draw, so a refusal does not necessarily mean there will be no test result. Whether the officer gave the required advisement, and whether you actually refused or simply could not complete the test, are questions for the DMV hearing and for the court.

• Write down exactly what the officer said about the test and what you answered.
• Note whether you were offered a choice between breath and blood.
• Request the DMV hearing within 10 days, even in a refusal case.

What to do after a refusal

A refusal case still runs on the same short DMV timeline. Request the hearing within 10 days of receiving the notice of suspension and keep every document you were given. A criminal defense attorney can review the advisement, any video and the officer's report, and explain how a refusal finding could affect both cases.