Can you refuse a breathalyser in San Diego?

Navigating the obstacles of DUI (Driving Under the Influence) laws in San Diego requires an understanding of your responsibilities and rights. A common question faced by drivers is whether they can decline a Breathalyzer test when pulled over by law enforcement. The answer isn’t straightforward, as it involves balancing legal obligations with personal rights. This article explores the nuances of declining a Breathalyzer in San Diego, the potential consequences, and the role of a San Diego criminal defense attorney in such situations.

Understanding DUI laws in San Diego

San Diego, like the rest of California, has stringent DUI laws aimed at curbing impaired driving. These laws are designed to enhance public safety and reduce accidents caused by drunk or drugged driving. Under California’s Vehicle Code, it is illegal to drive with a blood alcohol concentration (BAC) of 0.08% or higher for most drivers, 0.04% for commercial drivers, and 0.01% for drivers under 21.

Implied Consent Law

One of the foundational principles of California’s DUI regulations is the Implied Consent Law. When you gain a driver’s license in San Diego, you automatically abide to present chemical testing if a law enforcement officer questions you for driving under the influence. This law encompasses breath, blood, or urine tests to determine the presence and level of alcohol or drugs in your system.

Key points of the Implied Consent Law:

• Pre-Arrest Screening: When initially pulled over, an officer may request a preliminary alcohol screening (PAS) using a portable Breathalyzer. This test is generally voluntary unless you are under 21 or on DUI probation.
• Post-Arrest Chemical Testing: Once arrested for a DUI, you are required to undergo chemical testing (breath, blood, or urine). Refusing to take these tests after arrest can result in severe penalties.

Declining a breathalyzer

During the initial traffic stop, before any arrest, you may be asked to take a PAS test. Here, you have more leeway to refuse without immediate legal repercussions. However, refusal to take the PAS can still have implications:

• Probable Cause: Declining a PAS test can give the officer probable cause to arrest you based on other observed signs of impairment, such as erratic driving, slurred speech, or the smell of alcohol.
• Under 21 and DUI Probation: For drivers under 21 or those on DUI probation, refusing a PAS test can lead to automatic penalties, including license suspension, regardless of whether you are later convicted of DUI.

Post-arrest refusal

When you are arrested, the risks of refusing a breathalyzer or any other chemical test the consequences you might have to face are:

• License suspension: Refusal to take a chemical test after arrest results in an automatic suspension of your driver’s license. The suspension period varies but typically starts at one year for a first offense.
• Enhanced penalties: Refusal can lead to enhanced penalties if you are convicted of DUI. This could include longer license suspensions, higher fines, and mandatory DUI education programs.
• Evidentiary consequences: In court, your refusal to submit to a test can be used as evidence against you, suggesting that you knew you were intoxicated.

Legal defenses against breathalyzer refusal

If you find yourself facing penalties for refusing a Breathalyzer, a skilled San Diego criminal defense attorney in San Diego can explore several defense strategies:

• Lack of probable cause: If the officer lacked probable cause to pull you over or arrest you, the test results or refusal may be inadmissible in court.
• Failure to inform: Police officers must inform you of the consequences of refusing a chemical test. If they fail to do so, your refusal may be challenged.
• Medical conditions: Some kind of medical conditions can restrict a person from effectively carrying out a breath test. A defense attorney can argue that a refusal was due to legitimate health reasons rather than willful non-compliance.

Role of a San Diego criminal defense attorney

Navigating the legal intricacies related to DUI charges and refusal of breathalyzer requires the proficiency of a San Diego criminal defense attorney. Here’s how they can assist:

• Case Evaluation: An attorney can evaluate the details of your stop and arrest to identify any procedural errors or violations of your rights.
• Challenging Evidence: They can challenge the validity of the Breathalyzer results or the refusal evidence, especially if there were issues with how the test was administered or how the refusal was recorded.
• Negotiating Penalties: Experienced San Diego criminal defense attorney can negotiate reduced penalties or alternative sentencing options, such as DUI school or community service, to minimize the impact on your life.
• Court Representation: They provide representation in court, ensuring your side of the story is effectively communicated and that you receive a fair trial.

Alternatives to breathalyzer tests

While Breathalyzer tests are commonly used, they are not the only method for determining intoxication. Post-arrest, you may also be asked to take a blood or urine test. Here’s a brief overview:

• Blood Test: Considered highly accurate, blood tests measure the exact concentration of alcohol or drugs in your bloodstream. However, they are invasive and require proper handling to ensure accuracy.
• Urine Test: Less commonly used, urine tests can detect the presence of drugs and alcohol. They are less accurate for determining BAC at the time of driving but can show recent usage.

What happens after refusal?

Refusing a Breathalyzer doesn’t end the legal process. After refusal, several things can happen:

• Administrative per se hearing: You have the right to request a hearing with the California Department of Motor Vehicles (DMV) to contest your license suspension. This must be done within ten days of the refusal.
• Court proceedings: You will face DUI charges in criminal court, where your refusal will be a key piece of evidence.
• Penalties and sentencing: If convicted, the court will impose penalties which may include fines, jail time, probation, DUI education programs, and extended license suspensions.

Get in touch with a proficient San Diego criminal defense attorney

Declining a Breathalyzer test in San Diego involves a complex interplay of legal obligations and rights. While there are situations where refusal might be seen as protecting oneself, it often leads to significant legal challenges and penalties. Understanding the implications and seeking the assistance of a knowledgeable criminal defense attorney can make a substantial difference in the outcome of your case. Vikas Bajaj is an experienced and knowledgeable San Diego criminal defense attorney who can help in such a situation.

This expert can assist to get through the complexities of DUI laws, challenge unlawful processes, and work towards lessening the impact on your life. If you find yourself in a situation where you must decide whether to submit to a breathalyzer, remember that knowing your rights and having expert legal guidance from us is crucial. Call us as soon as possible!