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What Happens If I Refuse a Breathalyzer Test in California?You have likely seen a Breathalyzer used in a traffic stop, either on television or by someone who has been pulled over. Since driving under the influence (DUI) is an important topic discussed in driver education classes, you may have even been able to try one out yourself. Many courses bring in the handheld machines to let students test them out by putting the small tube in their mouths, blowing, and seeing the blood alcohol concentration (BAC) record appearing at 0.00. While you were sitting soberly in class, you probably never imagined yourself being in a situation where you would have to take the test. Unfortunately, many drivers will be asked to submit to the test at some point in their lives, with possible criminal charges to follow.

Knowing the Law

When sitting in your driver’s education course, all of the seemingly minor details of California roadway regulations can start to blend together. What you may have forgotten over the years is the details of California’s DUI implied consent laws. Upon signing up for their California driver’s license, all Californians sign over their right to refuse a breath alcohol test when asked by law enforcement. According to this law, any driver who is lawfully arrested for a DUI must submit to a chemical test to measure their BAC. You may be wondering what is considered a “lawful arrest.” An arrest is considered lawful if the officer has probable cause to conclude that you are driving under the influence of alcohol or other controlled substances. 

So if you have yet to be arrested and a police officer asks you to submit to a breath test, are you required to do so? The general answer is no. The implied consent law does not extend to those asked to complete a chemical test before they have been arrested. This is known as a preliminary alcohol screening (PAS). However, those under the age of 21 or on probation for a DUI must submit to the test since they are not allowed to drive with any alcohol in their system.

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Posted on in DUI

Testing the Credibility of Anonymous DUI TipsThe California Highway Patrol encourages civilians to report drivers that they suspect may be under the influence of alcohol or drugs. For instance, police recently arrested a Petaluma man for suspicion of DUI based on a tip from a civilian who saw the man allegedly swerving all over the road before stopping at a restaurant to have an alcoholic drink. The tip gave police cause to question the man and conduct sobriety tests, which allegedly showed that the man had a blood alcohol concentration that was three times the legal limit. DUI defense attorneys debate prosecutors about when a civilian tip creates enough reasonable suspicion to conduct a DUI stop.

Anonymous Tips

A DUI arrest may have been unlawful if police stopped a driver based solely on a tip from an unreliable source. Citizens who identify themselves to the police are more likely to be reliable because police assume that a person who has given his or her name is unlikely to make false accusations. Courts have ruled that anonymous tips can also create reasonable suspicion for a DUI stop. The California Supreme Court established a four-part test to determine whether an anonymous tip can justify a DUI stop:

  • The caller must have witnessed the alleged crime;
  • The caller must be able to describe the dangerous driving behavior and the appearance of the vehicle;
  • The anonymous caller must sound reasonably credible; and
  • The police officer must reasonably conclude that he or she is stopping the same vehicle that the caller described.

Defense Strategies

A police officer did not have reasonable suspicion to stop you for DUI if the caller was not credible and the officer did not witness any suspicious behavior. You can directly question the credibility of the caller if you know his or her name. If the tip was anonymous, you may still be able to identify the caller if the 911 call center had caller ID. You should also obtain a recording of the call to determine whether the information given was accurate and detailed enough to create reasonable suspicion. Evidence of your alleged DUI is inadmissible in court if the officer was not justified in stopping you.

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 Four Reasons Why Field Sobriety Tests Are Unreliable EvidenceThe name “field sobriety test” makes these exercises sound more official and clinical than they actually are. FSTs help police officers guess whether a driver may be impaired by using subjective exercises, such as the horizontal gaze nystagmus, walk-and-turn exercise, and one-leg stand. An experienced criminal defense attorney has many ways to refute the results of an FST if the prosecution tries to use them as evidence in a driving under the influence case. The defenses center around the many flaws with FSTs:

  1. FSTs Are Naturally Subjective: The accuracy of a test depends on a consistent application of the test and measurable results. Officers use FSTs as suggested exercises to help make judgments. They have discretion in the ways they administer FSTs and can draw different conclusions from the same results, depending on their experience and training. FSTs are not meant to provide empirical evidence of a person’s intoxication.
  2. The Subject Does Not Have a Baseline Result for the FST: An officer conducting an FST is looking for universal symptoms that suggest impairment. However, the officer is assuming how the subject would perform on the test under normal circumstances. A person’s normal physical condition will affect his or her ability to walk straight or maintain his or her balance.
  3. Many Factors Can Affect an FST: Subjects do not perform an FST in a controlled environment that allows for unbiased results. The levelness of the ground and the time of the day can both affect how someone performs. A subject may have more difficulty maintaining his or her balance on a sloped surface or seeing where he or she is walking when it is dark. The subject is also likely to be tired because most DUI stops occur at night.
  4. The Subject Is Feeling Stressed: An officer may misinterpret confusion or mistakes during an FST as signs of impairment by the driver. The subject is likely nervous because of the traffic stop, even if he or she is not under the influence of an intoxicating substance. Stress distracts people when they are listening to instructions and can cause them to make mistakes that they normally would not make.

Dealing with FST Results

You should not agree to take an FST, and police cannot require you submit to one. You would risk providing evidence for a DUI case against you. An officer may choose to arrest you on suspicion of DUI if you refuse an FST, but the prosecution must provide other evidence of the offense. A San Francisco DUI defense attorney at Burglin Law Offices, P.C., can contest your DUI charges when the prosecution lacks credible evidence. Schedule a free consultation by calling 415-729-7300.

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