California's Leading Authority in DUI
and Criminal Defense.
We Wrote The book

DUI & Criminal Defense Blog

What Happens if I Refuse a Breathalyzer During a DUI Arrest in California?

Posted by Mike Donaldson | Jan 13, 2019 | 0 Comments

What Happens if I Refuse a Breathalyzer Test During a DUI Arrest in California?

California drivers are "deemed" to have given their consent to a chemical test of their breath or blood incident to a lawful DUI arrest. (Veh. Code, § 23612.) This is what is commonly referred to as California's "Implied Consent" law. However, while all drivers in California have given "implied consent" to chemical testing, they can still refuse to submit to a chemical blood test following a DUI arrest. There can be very harsh license suspension penalties imposed as a result of a breathalyzer or blood test refusal in California. 

Drivers that refuse to submit to a chemical test (breathalyzer or blood test) incident to a lawful arrest can have their license suspended for one-year, two-years, or three-years, depending upon whether the arrest is for a first, second, or third DUI offense.  (Veh. Code, § 13353.)  First offenders who refuse a chemical test face a one-year license suspension with no eligibility for a restricted license. This is a very harsh suspension. The United States Supreme Court upheld the constitutionality of these administrative penalties for refusing warrantless chemical tests in Birchfield v. North Dakota. 

Drivers facing a refusal suspension should immediately request a DMV Hearing and challenge the basis of the suspension.  There are a variety of issues that we can address in fighting the refusal suspension. Most commonly, the issues are: (1) did the officer properly admonish the driver of the consequences of refusing the chemical test; and (2) did the officer have probable cause to believe the driver was driving under the influence of alcohol/drugs.  

To suspend a driver's license in a refusal action, the DMV must prove that an officer properly admonished the driver of the consequences of refusal. The officer must tell the driver that failure to submit to, or the failure to complete, the chemical test will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153, and the suspension of the person's privilege to operate a motor vehicle for a period of one year, two-years, or three-years.  If an officer does not properly inform a driver of these consequences, the refusal suspension should be set-aside.  

Often, police officers do not adequately inform the driver of the consequences of refusing the breathalyzer test or blood test, and the refusal suspension can be set aside. Our team of Riverside DUI attorneys has successfully handled thousands of drivers before the DMV, including cases where drivers refused the breathalyzer or blood test. Call us today to discuss your case if the arresting officer is alleging that you refused to submit to the breathalyzer test or blood test. 

About the Author

Mike Donaldson

Mike is a graduate of Gerry Spence's Trial Lawyer's College, and has lectured new attorneys at the Riverside County Public Defender on DUI Defense. Mike is the President of the Southwest Riverside County Bar Association, and a part-time professor of Political Science at Mt. San Jacinto College.


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment


Michael Wayne DonaldsonReviewsout of 30 reviews

Law Offices of Bartell, Hensel & Gressley
5053 La Mart Drive, Suite 201
Riverside, CA 92507
(951) 788-2230
Law Offices of Bartell, Hensel & Gressley
43537 Ridge Park Drive
Temecula, CA 92590
(951) 788-2230