breathalyzer PAS test
You have the right to refuse a breathalyzer PAS test when pulled over for DUI

If you’ve been stopped on suspicion of DUI, you have the right to refuse to take a PAS test if you are over the age of 21. According to California Vehicle Code Section 23612 (5) (i)1, the officer who stopped you has the duty to inform you that the preliminary test is voluntary. But there are pros and cons to every situation, and you should be aware of what could happen to you if you refuse to take the preliminary test.

Reasons to Take the Test

You Can Prove You Haven’t Been Drinking

If you haven’t drank any alcohol, a PAS test may prove this. If you take the preliminary test, the results could show the police officer that you are telling the truth when you say you didn’t have anything to drink.

Breathalyzer Test Results Can be Challenged in Court

If the evidence against you is strong, law enforcement can arrest you regardless of whether or not you take the test. Your best option might be to submit to a PAS test. PAS tests are fallible and can be improperly administered. An experienced DUI attorney could challenge the results in court.

If you refuse to take the test and the officer arrests you anyway, the officer needs to submit a sworn statement stating what facts supported his/her probable cause that you were intoxicated.  Some facts which could support probable cause include

  • You were driving below or above the speed limit.
  • The cop saw you staggering when you got into your car to drive.
  • You were weaving on the road.
  • Your breath smelled like alcohol and your speech was slurred.
  • You failed to signal when making a turn.

If you made mistakes like these before you were stopped, it might be in your best interest to take a PAS test and have your attorney challenge the results in court. This could help disprove the arresting officer’s probably cause.

Reasons to Refuse to Take the Test

You Have Been Drinking

If you have been drinking and you believe a preliminary test will show that your blood-alcohol level is above the legal limit, you should refuse the rest. If you take the test and it shows you have a blood alcohol content of .08% or higher, the officer will have to arrest you.

If you think you may fail the test but other evidence against you is weak, you may want to refuse to take the rest. The officer will take you to the police station where you will be required to take a blood test. There are several benefits to taking this approach rather than taking a PAS test:

  • If your BAC level is dropping, you allow more time for your BAC level to drop below the legal limit
  • It takes 7-10 days for police to receive your BAC results from the blood lab. Thus you could be released from custody rather than going to jail, due to the fact that there is no hard evidence available that is necessary for police to incarcerate you.

If you smell like alcohol and you want to refuse to take the preliminary test, you could say you had one beer, which is not incriminating.

You Refuse the Voluntary Test, and You Are Arrested Anyway

In order to arrest you for DUI, law enforcement must have probable cause to suspect that you’re intoxicated. Probable cause may be challenged in court and at a DMV hearing.

If the officer noticed that you were driving erratically, and can name facts to support probable cause, you could be arrested anyway. After you are arrested you will have to submit to a blood-alcohol test or risk having your driver’s license suspended for one year or even longer.

This is called the implied consent law (VC 23612).2

An arresting officer who suspects that you’re under the influence of drugs can ask you to take a blood test rather than a Breathalyzer test once you are arrested.

Call Wallin & Klarich if You Have Been Arrested for DUI

The DUI defense attorneys at Wallin & Klarich have over 30 years of experience successfully defending clients charged with DUI. We understand the complexities of defending clients in criminal court and at DMV hearings. We can challenge blood alcohol test results and prove they have been improperly administered or administered using faulty equipment. Our skilled DUI defense attorneys will do everything in their power to get you the very best result

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 be there when you call.


1. http://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml

2. Id.

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