DUI Laws
Refusing a Blood or Breath Test in California — Consequences and Defenses
Refusing a required chemical test after a California DUI arrest triggers automatic license suspension and enhanced penalties — on top of any DUI conviction. Learn what counts as a refusal, what the consequences are, and how an attorney can challenge a refusal finding.
By Michael P. Kade — Former LAPD Officer & Criminal Defense Attorney · Updated
Educational purposes only — not legal advice. This article provides general information about California DUI law and does not create an attorney-client relationship. Consult a licensed attorney for advice specific to your situation.
Key Takeaways
- —California's implied consent law requires you to submit to a chemical test after a lawful DUI arrest
- —Refusing triggers a 1-year license suspension for a first offense — separate from any criminal penalty
- —A refusal can be used as evidence of consciousness of guilt at trial
- —Police may seek a warrant for a blood draw even after a refusal
- —A preliminary roadside breath test (PAS) is generally optional for drivers 21 and over
Many people arrested for DUI in California believe they can avoid a conviction by refusing to take a breath or blood test. In reality, refusal triggers its own set of serious consequences under California's implied consent law — Vehicle Code § 23612 — and does not prevent prosecution. Understanding the difference between the optional roadside screening test and the mandatory post-arrest chemical test is essential to protecting your rights.
The Difference Between a PAS Test and a Post-Arrest Chemical Test
Before an arrest, an officer may ask you to blow into a handheld preliminary alcohol screening (PAS) device. For drivers 21 and older who are not on DUI probation, this test is generally voluntary — you may decline without triggering implied consent penalties. However, once you are lawfully arrested for DUI, the post-arrest chemical test is mandatory. You must choose between a breath test and a blood test (when both are available). You do not have the right to speak with an attorney before deciding, and you cannot condition your consent on first consulting a lawyer.
What Counts as a Refusal
A refusal is not limited to saying 'no.' The DMV and courts have found a refusal when a driver: fails to complete the test after starting it; gives an insufficient breath sample without a medical reason; conditions consent on speaking with an attorney first; or delays so long that the officer reasonably concludes the driver will not comply. If you have a genuine medical condition that prevents you from providing a breath sample, tell the officer immediately and ask for a blood test instead.
DMV Consequences of a Refusal
A refusal triggers an automatic license suspension or revocation through the DMV's APS process, separate from any criminal case. For a first offense, the suspension is one year with no restricted license available. For a second offense within 10 years, the revocation is two years. For a third or subsequent offense, the revocation is three years. You still have the right to request a DMV hearing within 10 days of arrest to challenge the refusal finding.
Criminal Consequences of a Refusal
In a criminal DUI case, a refusal can be introduced as evidence of consciousness of guilt — the argument being that an innocent person would have nothing to hide. Additionally, California Vehicle Code § 23577 imposes a mandatory additional 48 hours in jail for a first-offense DUI conviction when the driver refused a chemical test. The enhancement increases with prior offenses. Police may also obtain a search warrant for a blood draw, and courts have generally upheld forced blood draws pursuant to a valid warrant.
Penalties at a Glance
| Offense / Situation | Potential Penalty |
|---|---|
| First offense refusal — DMV | 1-year license suspension; no restricted license |
| Second offense refusal — DMV | 2-year revocation |
| Third+ offense refusal — DMV | 3-year revocation |
| First offense refusal — criminal enhancement | Additional 48 hours jail on conviction |
| Second offense refusal — criminal enhancement | Additional 96 hours jail on conviction |
Penalties shown are general ranges. Actual sentences depend on the specific facts of your case.
How Attorney Kade Defends These Cases
- —Challenge whether the arrest was lawful — an unlawful arrest voids the implied consent obligation
- —Argue the officer failed to properly advise you of the consequences of refusal as required by law
- —Show that a medical condition prevented you from completing a breath test
- —Demonstrate that the officer's refusal notation was inaccurate or premature
- —Challenge the DMV's evidence at the APS hearing before the criminal case proceeds
- —Negotiate with the prosecutor to reduce or eliminate the refusal enhancement
- —Present evidence that the driver attempted to comply but was physically unable to do so
Frequently Asked Questions
Refusing a post-arrest chemical test in California triggers an automatic 1-year license suspension for a first offense under the implied consent law (Vehicle Code § 23612). The refusal can also be used as evidence against you in your criminal DUI case, and you lose the ability to obtain a restricted license during the suspension period.
No. The pre-arrest Preliminary Alcohol Screening (PAS) test is voluntary for most drivers 21 and older. You may decline it without penalty. However, once you are lawfully arrested for DUI, you must submit to a post-arrest chemical test — breath or blood — or face the consequences of a chemical test refusal.
Generally yes — after a lawful DUI arrest, you may choose between a breath test and a blood test. However, if you choose blood and the officer cannot administer it (e.g., no phlebotomist is available), you may be required to take a breath test. In drug DUI cases, the officer may require a blood test.