The U.S. Supreme Court recently ruled in Missouri v. McNeely that police do not have a right to force you to take a blood test during a DUI stop.1The Fourth Amendment to the Constitution protects you from unreasonable searches and seizures.

Because of this ruling, if a cop forces you to submit to a blood test during a DUI stop, the test could be considered illegal and the results will likely not be accepted as evidence.

What if I Refuse to Take a Test?

You can refuse to take a blood test at a DUI stop. However, if the police find probable cause that you committed a crime, they can search you and your vehicle and/or place you under arrest. “Probable cause” means that the officer has a reason to suspect that you committed a crime.

Once you are placed under arrest, your consent to submit to a blood test is implied.

California Implied Consent Rule (CVC 23612)

The California Implied Consent Rule under Vehicle Code section 23612 states that if you are placed under arrest for driving under the influence of drugs or alcohol, you are deemed to have given consent to chemical testing of your blood or breath. You still have a right to refuse the tests, but there will be consequences for refusing, including:

  • Suspension of your driver’s license for one year if convicted of DUI
  • Suspension of your driver’s license for two years if you refuse the chemical test for a second time in 10 years.
  • Suspension of your driver’s license for three years if you have a prior DUI conviction.
  • Mandatory imprisonment and a fine of $125 if you are convicted of DUI

What Rights Do I Have?

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DUI blood test

If you are stopped on suspicion of driving under the influence of drugs or alcohol, it is important to understand what rights you have so that you can avoid the harsh consequences of a DUI conviction. When you are at a DUI stop, your rights include:

  • You can refuse to submit to a preliminary screening test (field test of any kind) before arrest if you are age 21 or older
  • You have a right to be warned of the consequences of refusing to submit to chemical testing once you’ve been arrested for DUI2
  • You must be advised upon arrest that you have a choice to submit to either a blood test or a Breathalyzer test
  • You must be advised that you can’t have an attorney present during administration of the chemical test or while deciding whether to submit to testing, and that your refusal of testing may be held against you in court.
  • If you refuse to submit to chemical testing and your license is suspended, you have a right to be advised that you can request a hearing within 10 days to review whether there was probable cause for the arrest and subsequent suspension of your license.

Call Wallin & Klarich Today If You are Facing DUI Charges

If you or a loved one refused to submit to chemical testing after being arrested for DUI, you need to contact an experienced attorney immediately. If your rights were violated, a skilled DUI defense attorney can help you obtain a favorable outcome in your case. At Wallin & Klarich, our attorneys have been successfully defending clients accused of DUI for over 30 years.

With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich DUI attorney available to help you no matter where you work or live.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.


1. https://www.aclu.org/criminal-law-reform/supreme-court-rules-missouri-v-mcneely-states-cannot-routinely-compel-blood

2. http://www.dmv.ca.gov/pubs/vctop/d11_5/vc23612.htm”>http://www.dmv.ca.gov/pubs/vctop/d11_5/vc23612.htm

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