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The results of a DUI test hold the power to sway the scales, determining whether you may be acquitted or convicted. Contemplating the possibility of not taking the test may lead you to consider the option of refusing it altogether. But can you refuse a DUI test?

Yet, this decision is not without its legal implications. In this article, we will highlight the legal repercussions that may accompany such a choice.

However, if you find yourself grappling with the aftermath of having already refused a California DUI test and are now facing charges, fear not—we at Manshoory Law Group are here to guide you through. We can help you build a solid defense strategy. Call us at (877) 977-7750 for a free consultation. 

The Implied Consent Law 

So, how to refuse a DUI test?  When driving in California, it is automatically assumed that you have given your consent to undergo DUI testing in the event of a lawful DUI arrest. This legal provision is commonly referred to as California’s “implied consent” law.

This means that you cannot refuse a DUI test post-arrest without facing legal repercussions. However, you can comfortably refuse a pre-arrest DUI test. 

Let us have a closer look at these two scenarios:

Pre-arrest DUI Tests 

Once you have been pulled over but not yet arrested, the police may ask you to take a breath test. In some cases, they may also ask you to participate in a field sobriety test

There are no legal consequences for refusing these tests unless you are under 21 or on probation for a previous DUI conviction. 

The evidence from these tests can be used in a criminal trial against you. Unfortunately, the police will rarely tell you that you have an option to refuse a pre-arrest DUI test. We do not recommend agreeing to a pre-arrest DUI test unless you are under 21 or on DUI probation. 

Post-arrest DUI Tests 

Once you have been arrested, refusing a DUI test carries unavoidable consequences. This holds true even if you have already undergone a pre-arrest DUI test. 

Note that you do not have a legal right to refuse a post-arrest DUI test based on the belief of wrongful arrest. However, suppose the judge determines the unlawfulness of your arrest or traffic stop. In that case, they will dismiss the charge — even if the test initially indicates intoxication.

how to refuse a DUI test

Can I Select My Preferred DUI Test After Arrest?

Generally, you will be told to choose between a blood or breath test. However, in some cases, the police will not give you a choice – they will solely decide for you which test you should take. 

Here are examples of some of these scenarios:

  • The police officer suspects that you are under the influence of drugs. In such cases, you will only be allowed to take a blood test. 
  • Your preferred DUI test is unavailable. In such cases, you will take the available test. 
  • The police officer considers your breath test to be unreliable. In such cases, you may have to take a urine or blood test

Can I Refuse Taking a Different DUI Test Than the One I Requested? 

Any deviation from the officer’s instructions, regardless of the circumstances, will be deemed a refusal to undergo a chemical test.

It is crucial to bear in mind that, according to California’s implied consent law, you have implicitly agreed to submit to DUI  testing. If the police officer fails to provide you with a choice, you retain the right to request an alternative test. Moreover, if proper procedures were not adhered to during the testing process, you can contest the results during the trial.

However, once you are specifically directed to undergo a particular DUI chemical test, there are very limited legal grounds on which you can refuse to comply.

What If I Have a Medical Condition?

Certain medical conditions may either excuse you or pose a hindrance to undergoing a specific DUI test. However, these conditions do not exempt you from the overall requirement of a DUI test.

Suppose you have a blood clotting or heart disorder and are under treatment with anticoagulants. In that case, you are allowed to refuse a blood test

Furthermore, specific conditions may lead to inaccuracies in BAC limit readings from a breath test. Some examples of these conditions include the following: 

  • Chronic heartburn, acid reflux, or GERD can potentially yield falsely elevated breath test results.
  • A high-protein/low-carbohydrate diet may inadvertently deceive breath test devices.

Should the officer inquire about your medical condition or dietary habits, providing truthful responses is crucial. Failure to do so may be interpreted as a willful refusal to take a DUI test. 

What If I am Severely Injured or Unconscious?

Being injured or unconscious does not legally excuse you from undergoing a DUI  test.

However, if an injury, particularly head trauma, renders you incapable of providing meaningful consent, you can refuse to take a DUI test. It is crucial to note that if your inability to give consent stems from the influence of drugs or alcohol, including prescription medications, your refusal to undergo a DUI test is not considered excusable.

What If I am Unable to Complete a DUI Test? 

Suppose circumstances beyond your control prevent you from completing a test. In that case, you must be allowed to undergo a different test

Some of these circumstances may include the following:

  • Inability to generate a sufficient volume of air for a breath test
  • Difficulty producing sufficient urine for a urine test

However, note that a deliberate failure to complete a California DUI chemical test will be treated as a refusal. In the event your case proceeds to trial, the judge may instruct the jury that they have the option (though not an obligation) to infer that your refusal stemmed from your awareness of guilt regarding the DUI charge.

Can You Refuse a DUI Test?

Other Situations That Can Qualify as a Refusal to Take a DUI Test

While the idea of “refusing” a DUI test may appear straightforward, it is a nuanced concept with various situations that could unwittingly be perceived as refusals. Beyond the scenarios mentioned earlier, here are additional considerations:

  • You are granted only one opportunity to accept a test. Suppose you decline a DUI chemical test initially. In that case, you do not possess the right to change your decision, and the officer is not obligated to provide a second opportunity.
  • Failure to select a DUI test is treated as a refusal. Despite the familiar “right to remain silent” upon arrest, this right pertains solely to self-incrimination, not the choice of a chemical test post-arrest. If offered a selection and you remain silent, it may be construed as a refusal.
  • You do not have the right to speak to a lawyer before a DUI test. While you typically have the right to speak to an attorney after an arrest, this right does not extend to DUI tests after an arrest.
  • Your own doctor cannot be present during the test. You do not have the legal right to have your personal doctor oversee or participate in the DUI chemical test. Instead, the test will be conducted by a law enforcement officer or an external laboratory.

Consequences of Refusing a DUI Test 

Refusing to undergo a post-arrest DUI blood or breath test in California can result in enhanced penalties after conviction

The escalated penalties for refusing a DUI chemical test include the following:

  • For a first-time DUI, an extra 48 hours in jail and a mandatory nine-month enrollment in a DUI school, replacing the standard three-month DUI program applicable to first-time DUIs without refusals.
  • In the case of a second time DUI, an added 96 hours of confinement in county jail.
  • For a third time DUI, an extended sentence of 10 additional days in jail.
  • In instances of a fourth or multiple DUI offense, an increased penalty of 18 extra days in jail.

Can Refusing a DUI Test Help Me in My Criminal Case? 

While refusing a DUI test may heighten potential penalties, surprisingly, it could yield positive outcomes for your criminal case.

Devoid of supporting DUI test results, the DA may question the credibility of the police officer or doubt their ability to persuasively convince a jury of your guilt.

In such scenarios, there is a chance your charges might be outright dismissed or downgraded to a “wet reckless,” a less severe charge. This plea bargain involves admitting to driving with some measurable alcohol in your blood. Another potential plea bargain is a “dry reckless,” where you admit only to reckless driving without any mention of alcohol.

Need a DUI Defense Attorney? Contact Us Right Away!

Although refusing a DUI test can lead to enhanced penalties, it is essential to recognize that strategic defense options exist. At Manshoory Law Group, our team of experienced DUI defense attorneys is dedicated to navigating the intricate legal terrain on your behalf. 

Whether challenging the credibility of arresting officers or exploring potential dismissals and plea bargains, we are here to formulate a robust defense strategy tailored to your unique circumstances. Call us at (877) 977-7750 for a free consultation.

Shaheen Manshoory