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During the course of a typical DUI investigation and arrest, a driver is often asked to provide a breath sample for testing on more than one occasion. Drivers often want to know if it is ever a good idea to refuse taking a breath test and would refusing this test result in additional penalties or other negative consequences.
The first time that a person is usually asked to provide a breath sample is during the DUI investigation that occurs after a driver has been pulled over and the officer suspects that the driver may be under the influence. The officer will ask the driver to provide a breath sample using the officer’s portable preliminary alcohol screening (“PAS”) device.
Most drivers are not required to provide a breath sample on the PAS device when requested and can refuse this test without penalty. However, it is critical to remember that drivers who are under the age of 21 and those who are already on DUI probation are required to test on a PAS device when requested by an officer. Refusing to take this test can result in an automatic one year license suspension for these drivers.
While other drivers may lawfully refuse to take a PAS test, in some cases taking the test may be beneficial. When drivers have just recently consumed alcohol, they may still be in the absorptive phase and may be experiencing a rising blood alcohol level. If the results of the PAS test are close to the 0.08 percent threshold and are lower than the results of the breath or blood test taken later on, there may be a strong argument that the driver was actually under the legal limit at the time of driving and thus the DUI charges may be dismissed or significantly reduced. In addition, some prosecutors will consider a defendant’s willingness to take a PAS test as evidence of his or her overall compliance and this may impact the type of resolution offered to the defendant. However, in other cases it may make sense to refuse the PAS test, especially in situations where arrest is imminent and the driver’s blood alcohol content may fall below the legal threshold if enough times passes.
Once a defendant has been lawfully arrested, he or she will be provided the option of taking either a breath test using the Breathalyzer machine at the police station or a blood test. Officers often prefer that suspects take the breath test as it is less of a hassle and does not require transporting the defendant to a hospital or other facility for a blood draw. In addition, the Breathalyzer provides instantaneous results, whereas the results of the blood test are not known for several weeks. While the suspect can refuse the breath test and insist on having a blood draw, it is important to remember that it is illegal to refuse both forms of testing. Test refusal will result in an automatic one year driver’s license suspension and the driver will most likely still be charged with driving under the influence in violation of California Vehicle Code Section 23152(a) along with a refusal allegation.