Refusing a Breath Test


Being pulled over by the police can be a very intimidating experience. When you add an officer’s suspicion that you might be driving under the influence, what appeared to be a regular traffic stop can turn into something very serious. When someone encounters this situation, they may face a dilemma because we have an inherent right not to participate in anything that would prove guilt and, based on this reasoning, many will refuse a breath test. However, a better understanding of the law and the consequences associated with a San Diego breath test refusal will be useful if you are arrested and charged.

Is Breath Test Refusal Illegal in San Diego?

Whether breath test refusal is illegal will depend on the existence of certain circumstance at the time a test is requested by the police officer. Generally, you may refuse a preliminary alcohol screening — without legal penalty — under the following circumstances:

  • Anytime before being placed under arrest
  • You are at least 21 years of age
  • You are not on probation for a DUI offense

While the police will not always make it apparent that you have a choice, the law recognizes the above situations in which you can refuse a breath test, and your refusal should not be used as evidence.

On the other hand, the law makes it illegal to refuse a breath test after being arrested. This is not to say that you cannot proceed with a breath test refusal after an arrest, it just means that there are certain legal consequences. In California, the implied consent law requires that you should submit to a breath test or other chemical testing following a lawful arrest for DUI.

Consequences of a San Diego Breath Test Refusal

A San Diego breath test refusal, following a lawful arrest, will result in higher penalties if you are found guilty of the underlying DUI offense. This can include additional jail time added to your sentence, and depending on whether it is a 1st, 2nd ,3rd or 4th DUI conviction, extra time can be as much as 18 days. Additional penalties could also include the suspension or revocation of your driver’s license.

Defenses to San Diego Breath Test Refusal

There may be legal defenses available to you when you’re charged with DUI and face enhanced penalties for refusing a breath test.

A common defense that you can put forward to the DUI charge itself is the unlawful nature of your arrest which would be based on one of the following:

  • You were not driving at the time
  • There was no probable cause to pull you over
  • There was nothing to substantiate a reasonable belief that you were driving under the influence

Since the implied consent law in California only applies if there is a lawful arrest, proving the absence of that can secure a not guilty sentence.

Other possible legal defenses that you can present include:

  • No advice as to the consequence of refusal – The law requires that a police officer must explain clearly the consequences associated with a breath test refusal.
  • Refusal as a result of injury – A court will excuse your refusal if, at the time, you were suffering from injuries that rendered you incapacitated. However, this defense is not applicable in situation where you are the author of your own injuries.

When charged with any criminal offense, you are considered innocent until proven guilty. It is important that you discuss all aspects of your case with an experienced DUI attorney, who will be able to prepare and argue your case at trial.

Get a Lawyer for Your San Diego Breath Test Refusal Case

Charges associated with DUI offenses are very serious under California law. Accordingly, you will need an experienced defense attorney on your side. At McElfresh Law, we have distinguished ourselves as criminal defense lawyers, trained in the law and courtroom practice. For years, we have been helping clients charged with numerous types of criminal offenses. Our goal is to secure a not guilty verdict or have the charges dismissed without the need to go to trial. You can trust our experience, professionalism, and our dedication to the freedom of our clients.

Call McElfresh Law, today at (858) 756-7107 to set up a consultation, and let us be your preferred criminal defense lawyer for your San Diego breath test refusal case.