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Breath test refusals and “implied consent”

When you are pulled over on suspicion of drunk driving in California, police officers will usually try to administer a chemical breath or blood test to determine if your blood alcohol concentration (BAC) is above the legal limit of 0.08%. This test creates powerful evidence that will be used against you in court.

Is there any way to avoid giving the police and prosecution this kind of evidence? Can you refuse a breath or blood test?

Implied consent

The answer to the above question is complicated. Technically, you can refuse to take a chemical breath or blood test, but doing so will carry serious penalties.

Under California’s “implied consent” law, drivers have already consented to a blood or breath test before there were even pulled over. Permission to drive in the state is contingent on agreeing to a BAC test when police have reason to conduct one on a driver.

A person who refuses one of these tests will have their driver’s license suspended immediately. For drivers over age 21, a first offense carries a yearlong suspension. A second offense within 10 years carries a two-year revocation of one’s license. These penalties are in addition to any the driver faces in connection with DUI or other charges.

Fighting BAC test evidence

Because it’s so hard to avoid taking the test, and because BAC test results are such powerful evidence, DUI defense strategies often revolve around discrediting the test evidence.

For example, with the help of a skilled criminal defense attorney, you may be able to show that the chemical breath testing device used by the police was defective. In some cases, defendants can show that police did not keep good records of a blood test, and so the prosecution cannot prove that the blood sample came from the defendant and not someone else.

Experienced DUI defense lawyers know many strategies and procedures that can help their clients defend their rights, their driving privileges and their futures.

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John Patrick Ryan

John Patrick Ryan has been practicing law for over 20 years. Experienced in criminal law. U.S. Navy Veteran.

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