If you are stopped in California or any other state on suspicion of DUI you may be asked to take a breath test at the roadside. (Note that officers must have reasonable suspicion of drunk driving to make a DUI stop.)
A breath test conducted at the roadside before an arrest for DUI/DWI is a Preliminary Alcohol Screening (PAS) test. The purpose of the PAS test is to help officers decide or confirm that there is probable cause to arrest you for DUI/DWI.
To take the test you will be asked to blow into a portable breath analyzer (or “breathalyzer”) which will measure your blood alcohol content (BAC). In all states it is a crime to drive with a blood alcohol concentration of 0.08 percent or higher.
If the roadside breath test (PAS test) shows you to have a BAC level at or above 0.08 you will certainly be arrested.
If your BAC level is below 0.08 you will most likely be arrested anyway. You can still be charged with driving under the influence based on what the officers have observed – it is not necessary for you to have a BAC level of over 0.08.
Can you refuse a roadside breath test?
In most states, you have the right to refuse a roadside breath test (PAS test) provided that you are over 21 and not on parole or probation for a prior DUI. (The exception is MONTANA, where you do not have the right to refuse a PAS test without penalty.)
This is because the purpose of the tests is to establish probable cause for an arrest.
There are no penalties for refusing a roadside breath test.
Should you refuse a roadside breath test (PAS test)? Yes, absolutely.
It is in your interests to exercise your right to refuse a roadside breath test:
- The roadside is not an ideal environment for conducting a breathalyzer or any other kind of test.
- Officers may (and often do) lack experience operating breath analyzers
- Breath analyzers themselves are unreliable. For example, they are calibrated to calculate blood alcohol content for an “average” person.
- Most importantly, if you take the test and fail you have provided officers with clear probable cause for an arrest.
- If you take the test and “pass” you may still be arrested anyway, on the basis on what the officers have observed. However, there is a chance that they will decide they do provide sufficient probable cause for an arrest.
What will happen if you refuse the breathalyzer test?
If you do not take the roadside breath test (and also refuse a field sobriety test) the officer will not be able to cite a failed breath test as probable cause for an arrest for DUI and/or DWI.
Instead, they must decide if their “observations” amount to sufficient probable cause for an arrest. For instance, the way you have behaved during the DUI stop, the smell of alcohol on your breath, and the way you have answered the officer’s questions. (This is why it is important to watch your behavior during a DUI traffic stop.)
If confident that they do have probable cause, based on their observations alone, they will arrest you. However, you will be in a stronger position to fight a conviction for DUI / DWI than if you had been arrested for failing the breath test. Here’s why:
Once arrested (and not before) you will be required to take a chemical blood alcohol (BAC) test at the police station (most often a breath test), regardless of whether you have already taken a breath test at the roadside.
However, because you have not taken the roadside breath test, a good DUI lawyer has the opportunity to challenge the officer’s observations – whether they did in fact amount to probable cause for the arrest. If successful in this challenge (and there is a chance they will be), the results of the BAC test will be inadmissible and your case dismissed.
Your DUI lawyer will not have the opportunity to defend you in this way if you have provided clear probable cause by taking and failing the test.
How to refuse:
Be very clear about your right to refuse a roadside breath test (PAS test). Most states require police officers to advise drivers of their right to refuse but in practice, rarely do. In the anxiety of the moment you may find it difficult to remember your rights and be railroaded into taking the test.
If the officer has not advised you of your right to refuse, ask if you have the right to refuse. You already know the answer – yes, you do (unless you live in Montana) – but getting the officer to say so allows you to politely respond that you choose not to take the test.
This is a less confrontational way to refuse the breath test than immediately saying, “I know my rights and refuse!” You do not want to behave in a way that allows officers to later describe you as uncooperative and hostile.
- Disregard attempts by the police officer to make you feel that you are not acting wisely by refusing the test. This is not the case – as any DUI/DWI lawyer will tell you.
- Do not be drawn into explaining why you do not want to take the test. Tell the officer that you simply choose not to take the test.
- Do not volunteer or agree to take the field sobriety test instead. You have the right to refuse this roadside test too.
For an overview of all your DUI test rights, see Submit to a DUI Test or Refuse?
The above information applies to drivers aged over 21 and not on parole or probation for a prior DUI.
Copyright © 2010 Caroline Mackenzie