There are three kinds of tests officers can use after arresting you for DUI in California:
- Breath test (“Breathalyzer”), which tests for alcohol only
- Blood test, which tests for alcohol or drugs
- Urine test, which is used mainly for drugs (but can also detect alcohol)
No matter which kind the officer asks you for, if you have already been arrested you are required to take the test. Refusing the test is illegal as a separate charge from the DUI itself, and it dramatically increases the penalties you will face. For example, on a first-time DUI:
| Normal 1st DUI Penalty | 1st DUI Penalty with Refusal | |
| Jail time: | 3+ days (or no jail time at all) | 2-10 extra days in jail |
| License suspension: | 4+ months | 12 months |
| DUI classes: | 3 months | 9 months |
These penalties only apply if you refuse the test after arrest. You could also be asked to take a roadside breath test before your arrest, called a PAS test. You are allowed to refuse this test in most cases and DUI lawyers typically advise that you refuse it.
What counts as refusing the blood, urine or breath test?
You will count as refusing if:
- You say you won’t take it
- You say nothing or don’t respond when asked to take it
- You’re so intoxicated that you are unable to comply (including passed out)
- You stall taking the test
- You claim you cannot take it (“I can’t urinate”)
- You fail to successfully complete the test (not blowing hard enough into the breath device)
Basically, if for any reason the test does not get completed, it will be considered your fault and officers will report that you “refused” the test.
There are only a few exceptions:
- You are allowed to request, once only, that a different type of test be used (for example, requesting that they use a breath test instead of a blood test because you don’t like needles). If there is only one kind of test available, however, you have to take it.
- You have a valid medical condition that caused you to be unable to take the test, such as asthma for a breath test. You will need documentation to prove this.
- You were passed out for a reason other than intoxication, such as injuries from an accident.
- Officers did not explain to you that the test is required and that there are consequences for refusing it. They are required to do this.
If any of these conditions apply, a good lawyer can fight your refusal charge and potentially get it removed from your DUI case.
Have you been charged with DUI? We can connect you with an experienced Los Angeles DUI lawyer and get you a FREE consultation. Fill out the form to the right or call (310) 896-2724 and get your free consultation today.
