Am I obligated to take the breath test when I am pulled over for a DUI? 14 Answers as of February 22, 2012

I was pulled over while driving home late one night and the police officer asked me to take a breathalyzer test. At first I refused, but the officer was very persistent. Was it legal for him to force me like that? Did I have other options? I ended being convicted of a DUI even though I was able to comprehend the situation.

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Lowenstein Law Office
Lowenstein Law Office | Anthony Lowenstein
It depends on several factors.
Answer Applies to: California
Replied: 8/4/2011
Law Office of Thomas F. Mueller
Law Office of Thomas F. Mueller | Thomas Mueller
California law requires you to take a blood or breath test if there is probable cause to believe you are DUI. You are not required to take the test at the scene but if you don't take the station test you will lose your license for a year. Most times the D.A. has enough evidence to convict you without a test so you are better off taking it.
Answer Applies to: California
Replied: 7/25/2011
Law Office of Michael Bialys THE DUI MAN
Law Office of Michael Bialys THE DUI MAN | Michael Bialys
You are only required to give a chemical test after a lawful arrest.
Answer Applies to: California
Replied: 2/22/2012
Law Office of Eric Sterkenburg
Law Office of Eric Sterkenburg | Eric Sterkenburg
If you are stopped and the officer has reasonable suspicion that you are under the influence you shall be told that your failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section, and the suspension of the your privilege to operate a motor vehicle for a period of one year. The revocation of the your privilege to operate a motor vehicle for a period of two years if the refusal occurs within 10 years of a separate violation or if the privilege to operate a motor vehicle has been suspended or revoked for an offense that occurred on a separate occasion.
Answer Applies to: California
Replied: 7/24/2011
Law Office of Peter F. Goldscheider
Law Office of Peter F. Goldscheider | Peter Goldscheider
You are not obligated to take the roadside breath test called a PAS but if you are later arrested you are obligated to take the chemical test at the location to which you are taken whether it be the breath machine or you choose a blood test.
Answer Applies to: California
Replied: 7/24/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    You are legally entitled to refuse to blow into the hand held device, called a preliminary alcohol screening (PAS) device. You must legally submit to the test requested at the station of your blood or breathe. If you went to trial and were found guilty you have 30 days to appeal. Go to wklawdui.com for more information to help you.
    Answer Applies to: California
    Replied: 7/24/2011
    A.L.A. Law Group, LLP
    A.L.A. Law Group, LLP | Lauren M. Mayfield
    You are not required to take the breath test in the field, however you will automatically lose your license for 1 year (for the first offense) and also suffer great consequences in court if you refuse a breath test or blood test at the station. There are two different breath tests but legally you are only required to take one, the breathalyzer at the station, not the PAS test in the field. If an officer insists you can politely tell them you have been advised by your attorney not to take the test in the field. All this test will do is give the officer probable cause to arrest you if you have been drinking. The only time this test will help get you out of being arrested for a DUI is when you are 100% sober and can pass the other field tests as well.
    Answer Applies to: California
    Replied: 7/24/2011
    Attorney at Law
    Attorney at Law | Michael J. Kennedy
    If you are lawfully arrested, you have to submit to your choice of breath or blood test. Absent an arrest, you don't have to do anything except supply license, registration, and insurance, and anyone who does more than that without an arrest is a fool.
    Answer Applies to: California
    Replied: 7/23/2011
    Law Offices of Matthew Murillo
    Law Offices of Matthew Murillo | Matthew Murillo
    You must submit to a chemical test after you are arrested. That can be a blood or breath test. There is also a Preliminary Alcohol Screen device test that is a breathalyzer, but is NOT one you have to submit to. You should speak to a local attorney immediately so they can help you figure out which you were "forced" to take. Also, keep in mind that you only have 10 days to preserve your right to a DMV hearing regarding your driving privilege. If this hearing is not requested, DMV will automatically suspend your license based on the arrest. Finally, remember that you have certain constitutional rights. An arrest is NOT a conviction. An arrest simply means the officer believed you were violating the law. That does not mean that you actually were (I.e., BAC was below .08?). The District Attorney must still be able to prove that you violated the law. Hold them accountable. Make them do their job. Hire an attorney.
    Answer Applies to: California
    Replied: 7/23/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    You have the right to refuse the PAS test, which is a on-scene hand-held breathalyzer test. You are, however, required to take a breath or blood test at the station or hopsital post arrest.
    Answer Applies to: California
    Replied: 7/23/2011
    Law Offices of James A Bates
    Law Offices of James A Bates | James A Bates
    You are obligated to take your choice of a blood or breath CHEMICAL test. The breath test out in the field does not count as a chemical test. The implied consent law requires you to take the chemical test and you lose your license if you refuse.
    Answer Applies to: California
    Replied: 7/23/2011
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    No you didnt have to take a blood alcohol test, but refusal results in automatic one-year suspension of your license imposed by DMV. He was doing you a favor by forcing you to take the test. You can be convicted with or without test results; probably easier with a refusal that shows poor judgment. Your attorney should have explained all this, or did you try to represent yourself in court against a professional prosecutor intending to convict? Sounds like it.
    Answer Applies to: California
    Replied: 7/23/2011
    Law Offices of Martina A. Vigil, PC
    Law Offices of Martina A. Vigil, PC | Martina A. Vigil
    If you are over the age of 21 and are not on probation for a prior DUI conviction, you do not have to take the breathalyzer in the field. I say a 'breathalyzer' but it's actually called a Preliminary Alcohol Screening test - a PAS. You also don't have to do the field sobriety tests that the officer asks you to perform. However, you do have to choose between either a blood test or a breathalyzer when you are eventually arrested and taken to the station. Remember that the officer must give you the option between a breath test or a blood test if both are available.
    Answer Applies to: California
    Replied: 7/23/2011
    The Law Offices of Gabriel Dorman
    The Law Offices of Gabriel Dorman | Gabriel Dorman
    The short answer to your questions is YES!. California has an "implied consent" rule which states that if you drive a car in California, and are lawfully arrested for a DUI, you are deemed to have given your consent to the chemical testing of your choice ... breath, blood or urine (only in cases of a DUI of drugs). This means that you must submit to a chemical test to determine the alcohol and/or drug content in your body AFTER you have been lawfully arrested. I highlighted the word "AFTER" because if you are referring to the Preliminary Alcohol Screening Test (PAS) which is offered at the scene during the DUI investigation and BEFORE you get arrested then, NO, you can refuse this test without consequence as long as you are over 21 years old. If you refuse to take a chemical test AFTER you are lawfully arrested, it will be considered a refusal and will be alleged against you as an enhancement to your DUI. A valid refusal, if found true, carries with it additional penalties including a 1 year suspension of your driver's license and jail. I hope this answer was helpful. Good luck.
    Answer Applies to: California
    Replied: 7/23/2011
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