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If you don’t trust breath tests, can you refuse to take one?

Posted by William Walraven | Nov 15, 2021 | 0 Comments

Chemical breath tests are a standard part of many driving under the influence (DUI) arrests. Police officers will usually have someone perform a breath test after a failed field sobriety test. The results of the chemical test may provide the grounds for an arrest and then later for a DUI charge against the driver.

However, the accuracy and reliability of these testing units have recently come under fire. There are many questions about how reliable chemical breath tests really are and whether they are accurate enough to be the main evidence against someone in a criminal case.

If you worry about the accuracy of a chemical test and don't want to face unfair criminal charges, can that be a justification to refuse an officer's request to test you?

California law requires that you submit to the test

In California, drivers are subject to an implied consent law. Simply driving on California roads implies that drivers have accepted certain restrictions on their behaviors, including an obligation to submit to chemical testing when an officer has probable cause.

During a traffic stop, if an officer has reason to suspect chemical impairment, they can request a chemical breath test from you. Although they cannot force you to provide a breath sample, they can arrest you for a violation of the implied consent law.

That violation of the implied consent law carries its own licensing penalties. You could also still find yourself facing DUI charges despite refusing the chemical test.

You can always challenge clearly inaccurate test results

If you just left your place of employment and then failed a chemical breath test despite having no alcohol in your system, you would likely have a strong case to challenge the accuracy of those test results. Being able to show that you were at work and sober minutes before the traffic stopped would help you call the accuracy of those results into question.

Issues ranging from your health to the maintenance of the unit could allow you to challenge test results. Many drivers facing DUI charges in California will challenge breath test results as part of their defense strategy. Learning about the rules that apply to chemical breath tests can help you handle a traffic stop or the DUI charges that result from one.

About the Author

William Walraven

Education Golden Gate University School of Law, San Francisco, California Juris Doctor - 2008 University of California at Los Angeles B.A. - 2000 Major: Psychology Past Positions McGrane LLP, Associate Attorney Trepel, Greenfield, Sullivan and Draa LLP, Associate Attor...


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