Your Ability To Refuse A Blood Or Breath Test, And The Possible Consequences Of Doing So
In this article, you will learn:
- The options and consequences when it comes to taking chemical tests after a DUI stop
- What to do after being released from custody following a DUI arrest
When I get asked if someone should or must take a breath or the blood test, I like to answer that with another question: When are you being asked? Because the timing of when you’re being asked to take a breath or blood test matters. If you’re being asked before you’ve been placed under arrest while they’re just investigating you, this is a preliminary alcohol screening test, and it’s just like another field sobriety test, something the officers use in their investigation to decide if they’re going to place you under arrest. That test is optional.
You can, and you should, decline to take that test. You’re within your rights to do that. You don’t have to take any breath tests before being arrested. The exception to that is if somebody is under 21 years old or is on DUI probation from a prior DUI case; for those in that category, that first breath test, even though you haven’t been placed under arrest, is not optional for you.
If you are not just being investigated, if an officer has indicated that you are being arrested, then an officer is supposed to tell you that you are required by law to take a breath or blood test. So, at that point, I do not recommend declining the test. If you’ve already been placed under arrest, you are then required to give a breath or blood test. If you fail to do so, it will be deemed what’s called a refusal, and a refusal carries a very harsh penalty for your driver’s license. If you refuse a post-arrest chemical test, you lose your license on a first offense for a year, on a second offense for two years, and it keeps going up from there.
The Steps Someone Should Take After Being Released From Police Custody In California
After they are released, many people are exhausted and stressed out. So, I recommend you can get a few hours’ sleep, and you don’t need to call anybody in the middle of the night. However, the next day when you wake up, you should do a couple of things. First, I believe that you should consult with an attorney who practices in the county of your arrest to find out the process, what possible penalties are, just to get an idea of what they’re looking at.
An attorney should tell you that there is a very important deadline that arises shortly after an arrest: you have ten days from the date you are arrested to call DMV and requesting a hearing. Sometimes throughout the stress of processing and what’s happened to them, people just kind of shove that paperwork away. They have a court date in a month or two, and they don’t think about it, and then they’ll call an attorney a few weeks later, and it’s too late for us to contact DMV on their behalf because the ten-day deadline has already passed. So, that’s the most crucial deadline that comes up.
Police officers will give you a temporary license, a pink sheet of paper after they arrest you, but it has a big block of language in tiny print, and not many people will read it. But if they read it, it tells them exactly what I’m telling you: you have ten days to call the DMV, and if you miss that deadline, your license will automatically get suspended when that pink temporary license expires. So, it’s vital that within ten days of the arrest, calendar days, not business days, you need to call DMV and request your DMV hearing or reach out to an attorney. One of the first questions that I go through with people is finding out where we are concerning that DMV deadline, so we can get it handled right away if we need to.