Should You Refuse Or Take The DUI Tests In California?

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The problem with just refusing to do the test, which you have a right to do, is that technically, a prosecutor in a trial could argue that you did not take them because you had a guilty conscience. If you are not going to take them, you need to have a good reason not to. You have to have a physical problem, “I can't do it, I have a bad back, bad knees, and ankles, whatever.” If you have a good reason not to take them, use that and do not take them. They cannot force you to take them, as you are not required. It is not like taking a chemical test, you are not required to take the field sobriety tests.

The only bad thing is it might come back if you do not have a good reason for not taking them or do not express one. It might be a problem later on, but it is better if you can avoid taking them. Do not take them because you are going to fail them no matter whether you are sober or not, the police officer will say that you failed it.

The last test they want to give you after the three tests is they may throw out a fourth field sobriety test. This could be walking the line, finger count tests. All tests that are just impossible but after those tests, they will generally say to you, “Okay, now I would like you to blow into this little handheld breath test.” That is the one test they really want to get to use against that person.

The handheld breath test is called the preliminary alcohol screening test device, it is a small handheld breath test. The law in California says that the police officer, after he does a balance and coordination test, if he wants to use that handheld test, he has to advise the person that they do not have to take that test. That test is strictly voluntary and that it is not the implied consent test. It does not substitute for it, but they do not have to take it. If they are arrested, they would have to take either a blood or breath test. However, this is before the arrest, but just after the field sobriety tests, but they never tell you that.

In reality, 10% of the officers will tell somebody that is voluntary and they do not have to take it. Ninety percent of highway patrol or local police will say, “I want you to blow into this.” They will never say anything more about it. People think they have to do it, so they take it. That is a big mistake, too. It is a big mistake to take that preliminary breath test when you are stopped by the officers. Never take it even if you have not had anything to drink. If the cop is there and he wants to give it, you can say, “I am not going to take that test. I will be glad to take a blood test if you arrest me”.

Therefore, it is advised not to take that test because ninety percent of the time, it is going to work against you later on. If the cop arrests you, they will take you down to the station or to a hospital. At the police station, they will take your blood but may also want you to take a breath test. Again, it is suggested to take a blood test. In the Bay Area, usually they do not keep you in jail. If you have somebody that can come pick you up, you can call that person. The police will let you sit in the jail until a person picks you up, sometimes they do not. There does not seem to be any rhyme or reason, sometimes they make you sit there all night before they even give you a phone call.

Most times, you can get out pretty easily after the blood test. At that point, in California, they also take your driver's license and give you a pink temporary license form, which states that you have ten days to call the Department of Motor Vehicles and request the hearing. That is a new law that came in a few years ago. It is called the administrative per se law, which allows the officers to immediately take your driver's license and give you a thirty day temporary license. This temporary license allows you to drive while you are fighting the administrative suspension. So you have to call DMV within ten days and request the hearing.


The consequences can be very bad. It is advised to never refuse to take either one of these tests. You should always opt for the blood test but never refuse a test. The reasons are people think, “Well, if I don't take a test, then they can't use that against me in court”. The problem with that is that if you go to trial and you refused to take a test, unless it is a very legitimate refusal and there are a very few of scenarios you can come up with where refusal might be legitimate, the prosecutor can get an instruction from the judge. This is a pretty powerful instruction. Basically says you refused the test because of a consciousness of guilt. So you do not want to have that. That is one bad thing about refusing to take a test.

The second bad thing is that a refusal, even on a first offense, is an automatic one-year loss of license. It is not a four-month loss of license with a work permit after thirty days, it is a one-year loss of license with no work permit. You will have no work license available, and you lose your license for a year on a first offense. On a second offense, it is two years. So, you are better off having a high blood alcohol level than refusing to take a test. Many people have a misconception about that, so never refuse to take the test.

If you are not sure whether to Refuse Or Take The DUI Tests In California, call The Law Office Of Blackie Burak for a FREE Case Evaluation at (925) 933-4500 and get the information and legal answers you're seeking.

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