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You may not be aware of it, but when you obtained your California driver's license or when you drive on California's roads and highways, you have given your “implied consent” to submit to a breathalyzer test if you are lawfully arrested for driving under the influence of alcohol.

Notwithstanding your “implied consent,” you can refuse to take a Breathalyzer test, just be prepared to face significant consequences, including losing your driving privileges as well as greater penalties if you are ultimately convicted of DUI.

California Vehicle Code Section 23612 provides that a California driver has “deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested” for DUI. The arresting officer is required to give the driver the choice of either a blood or breath test.

If you've been arrested for DUI and have been requested to take a Breathalyzer or other chemical test, the officer has an obligation to tell you the consequences of refusing to submit to the test.

If you fail or refuse to submit to a Breathalyzer test, you are subject to the following penalties pursuant to Vehicle Code Sec. 23612:

  • a fine,
  • mandatory imprisonment if you are convicted of a violation of Vehicle Code Section 23152 (DUI without injury) or 23153 (DUI with injury),
  • the suspension of your driving privileges for a period of one year,
  • the revocation of your driving privileges for a period of two years if you have a previous conviction for reckless driving or DUI within the previous 10 years,
  • the revocation of your driving privileges for three years if you've been convicted two or more times for reckless driving or DUI with the previous 10 years.

You do not have the right to have an attorney present before stating and deciding whether to submit to a Breathalyzer test or during administration of the test. Additionally, your refusal may be used as evidence against you at trial. The arresting officer has an obligation to advise you of both of these aspects of the law. (Vehicle Code Sec. 23612(a)(4))

Breathalyzer tests are not always accurate, and the results can and often are deemed unreliable and inadmissible in court.

Call us today to discuss your situation

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Gerald Schwab, Jr.


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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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Phone: 559.441.1418