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Home » Blog » Can You Refuse a Breathalyzer Test in California?

Can You Refuse a Breathalyzer Test in California?

Sasha Bojat
February 17, 2025

In California during 2021 one in three fatal car accidents – 32 percent – was caused by drunk driving. Despite the common confusion between the terms DWI and DUI in California (DWI vs DUI California), both refer to the same serious offense that can result in arrest – driving under the influence of alcohol or other substances. Law enforcement police officers in the field have the authority to order alcohol tests, which leaves many drivers with a difficult choice: Accept the breathalyzer test or face additional penalties for refusal, even before determining the actual blood alcohol level.

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California’s Implied Consent Law

Under California Vehicle Code § 23612, all drivers implicitly agree to submit to a chemical test (breath, blood, or urine) if lawfully arrested for DUI. This is known as the implied consent law. Here’s how it works:

Preliminary Alcohol Screening (PAS) Test vs. Post-Arrest Test

During a Traffic Stop
- A police officer may ask you to perform field sobriety tests (e.g., walking a straight line) or a preliminary alcohol screening (PAS) breath test using a handheld device.
- Important* The PAS test is voluntary unless you’re under 21, on DUI probation, or the officer has probable cause to arrest you.
After a Lawful Arrest
- Once arrested, you must take a post-arrest breath or blood test at the police station or hospital. Refusal triggers automatic license suspension (1 year for first offenses, longer for repeat cases).

Breath vs. Blood Test: Which Is Better?

If arrested, you’ll typically choose between a breath test (using an evidential portable alcohol system) or a blood test. Here’s what to consider:

Breath Test Pros: Quick results, less invasive.
Breath Test Cons: Margin of error (breath machines can misread due to mouth alcohol or medical conditions).
Blood Test Pros: More accurate, harder to challenge.
Blood Test Cons: Takes longer, requires a blood sample drawn by a professional.

A Los Angeles DUI accident lawyer can scrutinize the testing process for errors. For example, was the device calibrated? Was the blood sample stored properly?

Can You Refuse a Breathalyzer Test in California? 2

Can You Refuse a Breathalyzer Test in California?

Technically, yes you have a legal right to refuse a breathalyzer test only before arrest. You should still be aware that refusing a breathalyzer (or blood test) could come with severe consequences:

1-Year License Suspension: The DMV will revoke your driving privileges immediately, even if you’re later acquitted in criminal court.
Enhanced Penalties: Prosecutors may argue refusal implies guilt, leading to harsher fines, mandatory jail time, or extended DUI probation.
Evidence in Court: While refusing denies police direct evidence of your BAC, prosecutors can still use witness testimony, dashcam footage, or officer observations to build a case.

What Is the Limit for a Breathalyzer Test?

California law sets specific BAC thresholds to determine whether a driver is legally impaired. These limits vary depending on the driver’s age and license type:

Standard Drivers (21 and Older)
- Legal Limit 0.08% BAC.
- If your breathalyzer test shows a BAC of 0.08% or higher, you can be charged with driving under the influence (DUI).
Commercial Drivers
- Legal Limit 0.04% BAC.
- Even a small amount of alcohol can lead to a DUI charge for commercial drivers.
Underage Drivers (Under 21)
- Legal Limit 0.01% BAC.
- California has a zero-tolerance policy for underage drinking and driving.

Can You Challenge Breathalyzer Results?

Yes! A skilled personal injury attorney at Bojat Law Group can challenge the accuracy of your breathalyzer test by:

Questioning whether the device was properly calibrated.
Investigating whether the officer followed proper procedures during the test.
Presenting alternative explanations for a high BAC (e.g., medical conditions or mouth alcohol).

Do not let a DUI charge jeopardize your future and your driver’s license. Fill out our free consultation form or call the leading Los Angeles DUI lawyers from Bojat Law Group at (818) 877-4878.

As President and Owner of Bojat Law Group, my career has been devoted to securing justice for countless injury victims resulting from the negligence of others. My main goal in the practice of law is to passionately represent my clients to assure the best result in each case.

Due to my personal relationship with the clients, aggressive approach with insurance companies and overall knowledge in the Personal Injury field, I am a fierce advocate for my clients capable of obtaining high settlements and verdicts.

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