Police officer with a breathalyzerIt’s Friday night, you’re off work and you decide to stop by the bar and catch up with some friends. You talk about your job, the kids, old times and before you know it, you’ve had a few drinks. It gets dark, you bid your friend’s farewell and you decide you’re fine to drive.

Then you hear the siren and see the lights in your rearview.

Busted.

But wait – is there anything you can do in the moment to protect yourself from serious criminal charges and penalties?

California’s Implied Consent Law

Under the “implied consent” law, California drivers are required to submit to chemical testing following a lawful DUI arrest. A DUI arrest is only lawful if the officer has probable cause to believe that you are driving under the influence of alcohol or drugs. There’s your first potential defense, that the police officer did not have probable cause to pull you over.

Before you are lawfully arrested, you are not required to submit to any chemical tests. You are not required to walk any lines, stand on one foot or follow a flashlight with your eyes. There are no penalties for refusal to take a field sobriety test. To establish probable cause, an officer may ask you to blow into a portable breathalyzer unit. You are not required to do so – and should not, due to how inaccurate these machines can be – unless you are under 21 or are on DUI probation.

Once you are lawfully arrested, there are consequences for refusal to submit to blood, breath or urine testing. For a first offense, that can include suspension of your driver’s license and a fine. The penalties increase with each subsequent offense. Whether or not you should refuse mandatory blood, breath or urine testing is dependent on the facts of your case and your willingness to suffer the administrative penalties. On one hand, refusal to submit to testing means the prosecution does not have access to blood alcohol content (BAC) evidence proving your intoxication, which can help your attorney argue your case down to a less severe crime (like a wet reckless). On the other, a conviction can hang over your head for a long time and lead to more severe penalties, including felony status, if you are convicted in the future. Our attorneys are highly experienced in California DUI cases and can help you chart your best course moving forward.