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DUI Investigation: There Is a Breath Test that You Can Lawfully Refuse

If a police officer pulls someone over and suspects that the driver has been driving under the influence (“DUI”), the driver may be asked to submit to two breath tests: one breath test before he is arrested, and a second breath test after he is arrested.

Is there a difference between the two breath tests?

Yes. The first breath test is a screening test and can be refused by drivers who are age 21 and older. The second breath test is an evidentiary test and, if refused, will result in a suspended license and possibly jail time.

The Pre-Arrest Breath Test Is the PAS Test

The first breath test is the Preliminary Alcohol Screening (“PAS”) test. The test is administered via a handheld device that a driver blows into. The PAS device takes the driver’s breath sample, applies a mathematical conversion factor, and then estimates the amount of alcohol in the driver’s blood.[i]

Even though the PAS test purports to measure a driver’s blood alcohol level, the test is, as its name states, a preliminary screening test designed only to detect whether alcohol is present in the driver’s blood. The PAS test is not determinative of the driver’s actual blood alcohol level.[ii]

The first breath test is administered during the course of a DUI investigation. Once a police officer suspects that a driver is impaired or has been driving under the influence, the officer will conduct an investigation to determine whether to arrest the driver for DUI. In conducting a DUI investigation, an officer may ask the driver questions (like how recently she drank and how much), make note of any physical signs of intoxication (such as slurred speech, an odor of alcohol, and/or an unsteady gait), and test the driver’s coordination by administering several field sobriety tests.

In addition to all of these investigative techniques, the officer also has the option of administering the PAS test to help him decide whether to arrest the driver for DUI.[iii]

Drivers Who Are 21 or Older Can Refuse the Pre-Arrest Breath Test

A driver should be aware, however, that she is not required to submit to the PAS test.[iv]  In fact, before the officer can administer the PAS test, the officer must first inform the driver that she has the right to refuse the PAS test:

“If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. … The officer shall advise the person of … the person’s right to refuse to take the preliminary alcohol screening test.” Vehicle Code §23612(i) (emphasis added).

And if the driver refuses the PAS test, recent case law supports the position that the driver’s refusal cannot be used against her at trial.[v] In other words, the prosecutor should not be permitted to tell a jury that a driver refused the PAS test because the driver knew she was guilty.

It should be noted that drivers who are younger than 21 cannot refuse the PAS test.[vi] A driver under 21 (someone who, for instance, is 15 to 20 years old) must submit to the PAS test.[vii] If the driver refuses, her license will be suspended for one year.[viii] If an underage driver has suffered one or more DUI-related convictions or suspensions within the last 10 years, the penalty is harsher: her license will be revoked for up to three years.[ix]

Also, drivers who are on probation after suffering a DUI conviction, regardless of age, are also required to take the PAS test.[x] Refusal will result in a one-year suspension of the driver’s license.[xi] The driver’s license will be revoked for up to three years if the driver has suffered one or more DUI-related convictions or suspensions within the last 10 years.[xii]

The Post-Arrest Test Is a Chemical Breath Test

Once a driver is arrested for DUI, she is obligated by law to submit to a chemical test.[xiii] The driver may choose to submit to a chemical blood test or a chemical breath test.[xiv] For purposes of this article, the author assumes that a hypothetical driver who is arrested for DUI will choose the chemical breath test. As with the pre-arrest breath test, the post-arrest breath test requires the driver to blow into a device that will attempt to measure the person’s blood alcohol level based on her breath sample.[xv]

What is the difference between the pre-arrest breath test and the post-arrest breath test? One difference is in how each test can be used. The pre-arrest PAS breath test is a screening test and is admissible to show whether a person has any alcohol in her system.[xvi] The post-arrest chemical breath test is an evidentiary test and is admissible to show the amount of alcohol in a person’s system.[xvii]

The chemical breath test is used by the DMV to suspend a driver’s license[xviii] and by the prosecutor to convict a driver of DUI in criminal court[xix]. DMV hearing officers and jurors tend to find the chemical breath test — which displays a driver’s alleged blood alcohol level as an easy-to-read number (like .08) — very persuasive. This is especially true if the chemical breath test is not challenged by the driver (or her criminal defense attorney).

No Driver May Refuse the Post-Arrest Breath Test

Once an officer arrests a driver for DUI, the officer must tell the driver that if she refuses or fails to complete the chemical test then, at minimum, her license will be suspended for one year by the DMV.[xx] The driver will also be told that she has no right to have an attorney help her decide whether to do the chemical test or to have an attorney present while the test is administered.[xxi] The driver must also be informed that refusing to do the test will result in a fine, in mandatory jail time if the driver is convicted of DUI, and may be used against her in criminal court.[xxii]

For context, here is a comparison of the license suspension penalty, imposed by the DMV, between a driver who is arrested for DUI and submits to the post-arrest breath test and a driver who is arrested for DUI and refuses the test.

If the driver is arrested and … The DMV will suspend her license for …
does the chemical breath test4 months[xxiii]
refuses the chemical breath test12 months[xxiv]

Notice that refusing the post-arrest breath test extends the DMV-imposed period of suspension by eight months.

A second period of suspension will be imposed by the criminal court if the driver is later convicted of DUI.

If the driver is arrested and … If convicted of DUI, her license will be suspended for …
does the chemical breath test4 months (suspension period imposed by DMV)[xxv]
PLUS
6 months (suspension period imposed by criminal court)[xxvi]
refuses the chemical breath test12 months (suspension period imposed by DMV)[xxvii]
PLUS
6 months (suspension period imposed by criminal court)[xxviii]

It should be noted that the suspension periods — one due to the decision by the DMV and the other caused by the DUI conviction — are imposed concurrently (they can overlap) rather than consecutively (one suspension period must end before the next one can begin). [xxix]

Refusing the post-arrest breath test impacts a driver’s criminal case as well. In the context of the criminal case, the refusal of the chemical breath test is treated as a sentencing enhancement — meaning that it is imposed in addition to whatever penalties come with a DUI conviction.

If the driver is arrested and … If convicted of DUI, she must be sentenced to …
does the chemical breath test4 days’ jail (if not granted probation)[xxx]
OR
2 days’ jail (if granted probation)[xxxi]
refuses the chemical breath test4 days’ jail (if not granted probation)
OR
2 days’ jail (if granted probation)
AND
an additional 2 days’ jail[xxxii]

It should also be noted that, at trial, the jury may be instructed that refusing the chemical test can be interpreted as evidence that the driver knew that she was guilty.[xxxiv] So, if a driver refuses the chemical breath test and is later convicted of DUI, the driver must serve an additional two days of jail, regardless of whether or not she receives probation.[xxxiii]

The penalties relating to the driver’s license[xxxv] and jail time[xxxvi] will be harsher if the driver has suffered a prior DUI-related conviction or suspension in the last 10 years.

By refusing the chemical test, a driver can eliminate one of the strongest pieces of evidence against her. But, as described above, there is a cost: a refusal requires the driver to have her license suspended for a longer time and to risk additional jail time if she proceeds to trial.

Thus, a driver arrested for DUI is faced with a dilemma: (1) refuse the chemical test — and have her license suspended for one year as well as risk additional jail time — in the hopes of gaining a strategic advantage over the prosecutor; or (2) submit to the test and likely suffer a conviction.

Conclusion

Drivers who are 21 years old or older have the right to refuse the pre-arrest breath test. However, once arrested for DUI, all adult drivers, regardless of age, must submit to a post-arrest chemical test, or else they will suffer a longer license suspension and will risk additional jail time.

[i] 17 California Code of Regulations §1220.4(f); Vehicle Code §23610(b).

[ii] Vehicle Code §23612(h); Kodani v. Snyder (1999) 75 Cal. App. 4th 471, 473, FN 2; 72 Ops. Atty. Gen. 226, #88-1102 (1989).

[iii] Vehicle Code §23612(h).

[iv] Vehicle Code §23612(i).

[v] People v. Jackson (2010) 189 Cal. App. 4th 1461, 1469. [“We conclude that because defendant had a ‘right to refuse’ to take the PAS test under [Vehicle Code section] 23612, the trial court erred by allowing the officer to testify that the defendant refused to take the test.”]

[vi] Vehicle Code §23136(a).

[vii] Vehicle Code §23136(a). Drivers under 21 must also be told that refusing the PAS test will result in their driver’s licenses being suspended or revoked. Vehicle Code §23136(c)(3).

[viii] Vehicle Code §13353.1(a)(1).

[ix] Vehicle Code §13353.1(a)(2), (a)(3).

[x] Vehicle Code §23154(c)(1), (a).

[xi] Vehicle Code §13353.1(a)(1).

[xii] Vehicle Code §13353.1(a)(2), (a)(3).

[xiii] Vehicle Code §§23612(a)(1)(A), (a)(1)(C).

[xiv] Vehicle Code §23612(a)(2)(A). If the driver cannot complete one type of test or, one type of test is unavailable, then the driver must submit to the remaining test. If both the chemical breath and chemical blood tests cannot be completed or are both unavailable, then the drier must submit to a urine test. Vehicle Code §23612(d)(2).

[xv] 17 California Code of Regulations §1220.4(f); Vehicle Code §23610(b).

[xvi] Vehicle Code §23612(h); Kodani v. Snyder (1999) 75 Cal. App. 4th 471, 473, FN 2; 72 Ops. Atty. Gen. 226, #88-1102 (1989).

[xvii] Vehicle Code §23612(a)(1)(A).

[xviii] Vehicle Code §§13353.2(d), 13557(b)(3).

[xix] Vehicle Code §§23152(a), (b); 23610(a)(3); CALCRIM No. 2110, 2111.

[xx] Vehicle Code §§23612(a)(1)(D), 13353(a)(1).

[xxi] Vehicle Code §23612(a)(4).

[xxii] Vehicle Code §§23612(a)(1)(D), (a)(4).

[xxiii] Vehicle Code §13353.3(b)(1).

[xxiv] Vehicle Code §§23612(a)(1)(D), 13353(a)(1).

[xxv] Vehicle Code §13353.3(b)(1).

[xxvi] Vehicle Code §13352(a)(1).

[xxvii] Vehicle Code §§23612(a)(1)(D), 13353(a)(1).

[xxviii] Vehicle Code §13352(a)(1).

[xxix] Vehicle Code §§13353.3(c), 13352.4(b).

[xxx] Vehicle Code §23536(a).

[xxxi] Vehicle Code §23538(a)(1).

[xxxii] Vehicle Code §§23577(a)(1), 23538(a)(1).

[xxxiii] Vehicle Code §§23577(a)(1), 23538(a)(1).

[xxxiv]CALCRIM No. 2130; People v. Williams (2001) 89 Cal. App. 4th 85, 101. However, the prosecution must still establish, beyond a reasonable, that the driver refused or failed to complete the post-arrest chemical breath test. Vehicle Code §23577(b), CALCRIM No. 2131.

[xxxv] Vehicle Code §§13353(a)(2), (a)(3).

[xxxvi] Vehicle Code §23577(a)(2)-(5).

Copyright © 2017 Michael J. Ocampo, Attorney at Law. All rights reserved.

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