It is not uncommon for people arrested on suspicion of a California DUI to mistaken believe that it is in their best interest to flatly refuse the breathalyzer. Not knowing the correct thing to do in this scenario can be the difference between becoming convicted of a California DUI and not, and unfortunately, the right thing to do is a little more complicated than merely refusing the breathalyzer or not.
When people refer to a “breathalyzer” during a California DUI stop, they actually referring to two different tests. The first is the roadside breathalyzer, often called a preliminary screening alcohol test or “PAS” test, and the second is the “chemical breath test.”
According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”
The PAS roadside breath test, like other field sobriety tests such as the walk-and-turn test, the horizontal gaze nystagmus test, and the one leg stand test, are optional. Although an officer might threaten to arrest someone for refusing the optional breathalyzers, a driver should stand their ground and politely refuse to complete any field sobriety tests. Despite what the officer might say, they are optional and are only meant to give the officer the evidence they need to arrest the driver.
In fact, the officer must advise the driver that the roadside breath test is optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”
As stated above, providing a breath sample to an officer during the PAS test only give the officer the evidence they need to arrest a driver. Whether a driver provides the officer that information or not, the officer will have to make the decision to arrest a driver on suspicion of a DUI or not. In order to arrest a driver on suspicion of a California DUI, the officer must have probable cause. The probable cause can consist of driving patterns indicative of intoxication, bloodshot eyes, slurred speech, smell of alcohol on a driver’s breath, admissions of drinking or intoxication, and, yes, a reading of the pass test indicating a BAC of 0.08 percent or higher.
If the officer meets the probable cause standard by obtaining and/or observing enough evidence that a driver is driving under the influence, the officer can lawfully arrest the driver on suspicion of driving under the influence. Once this happens, California’s Implied Consent law takes effect.
California’s Implied Consent law, codified in California Vehicle Code section 23612(a)(1)(A), “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”
Simply put, if you have a license and you drive in California, you have impliedly consented to submit to the chemical test after you have lawfully been arrested for a DUI, which can either be a breath test or a blood test. If the driver opts not to give blood, then they must provide a breath test. Conversely, if a person opts against the breath test, they must submit to the blood test.
So should you pass on the breathalyzer?
Pass on the roadside “PAS” test. Submit to the chemical test required under California’s Implied Consent law (See Breath or Blood Test After a California DUI Stop).