How Breathalyzer Tests Affects Your DUI Case in California


Preliminary breath alcohol content analysis after a drunk driving stop

After you were pulled over and before you were formally arrested, an officer likely asked you to blow into a handheld Breathalyzer®, which is referred to as a preliminary alcohol screening device or PAS device. How you responded can impact the outcome of your DUI case, because this is an optional test.  Therefore, you have the right to refuse this test as long as you are over 21y/o and/or not on probation for a prior wet reckless or DUI. In addition, law enforcement is required to advise you of your right to refuse the PAS test.

California implied consent laws

When you obtained your driver’s license from the California Department of Motor Vehicles (DMV), you agreed to submit to a chemical test that measures your blood alcohol content (BAC) if a law enforcement officer asks you to do so. This is called implied consent, which makes it illegal for you to refuse blood or breath testing if a police officer suspects you of driving under the influence or alcohol and/or drugs.

What happens if you refuse to blow

Implied consent only applies after you have been arrested.  Therefore, you would be well within your right to refuse the PAS screening if you are merely detained and not under arrest. Under the implied consent law, if you do refuse chemical or breath testing after you have been arrested, you would face enhanced penalties from court if convicted and on a 1st offense DUI, a mandatory 1 year license suspension with no restricted license eligibility from DMV. Breath or blood test refusal on a 2nd or 3rd offense DUI could result in a 2 or 3 year mandatory suspension without restriction. It is important to note that arresting officers are required to advise DUI suspects of implied consent and the consequences of refusal.  If the officer fails to do so, you could prevail in your DMV hearing solely based upon the officer's failre to properly admonish you.  However, the prosecutor on your criminal case can rely on other evidence to prove your DUI charges, such as field sobriety test results and the arresting officer's testimony.

Challenging the Breathalyzer

Under California DUI law, there is a presumption of impairment if you register a BAC level of 0.05 and/or 0.08 percent or above. A breathalyzer test result can be extremely reliable if the instrument used to administered test is operating properly, the person who administered the test did so properly, and the test is administered in optimal conditions. Given the various aspects of the test administration and the machine itself, which is necessary to insure the reliability of the evidence, we challenge breath evidence by attacking the following:

  • Maintenance and calibration records of the machine.
  • The arresting officer's contention that he administered the test properly.
  • The time from the moment our client was stopped and when the test was conducted.

Topics:  Alcohol Testing, Breathalyzer, DUI

Published In: Criminal Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Takakjian & Sitkoff, LLP | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »