Ask A Lawyer: To Blow Or Not To Blow - Los Angeles News | FOX 11 LA KTTV

Ask A Lawyer

To Blow Or Not To Blow: Refusing To Take DUI Test

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You know the scenario- you just left a bar, a restaurant, a party or wherever.  You had a couple of drinks…or more maybe more.  Whatever the number of drinks are, you know you are either legally  "under the influence" or straight up intoxicated.  You look out your rear view mirror and you see the flashing lights behind you…oh brother.  As you try not to panic you begin to weigh what you can do in the moment to help your situation. To blow or not to blow?  In other words you are ask what Gina from Arcadia asked me on Facebook—IF I KNEW I WAS DRINKING SHOULD I REFUSE TO TAKE THE TEST?

First things first.  You need to know your tests.  There are a couple of kinds of tests—first there is thing called the PAS- that stands for Preliminary Alcohol Screening Test.  This is actually NOT a chemical test by law and you are LEGALLY allowed to refuse to take it.  The key is to be able to recognize a PAS.  A PAS is a HANDHELD Breathalyzer that is done right there out in the field.  Lots of people get confused between this and the real Breathalyzer, which the cops have to actually take you down to the station to take.

So lets say the cops say the magic words --- YOU ARE UNDER ARREST.  You hear those words under California law YOU MUST TAKE THE TEST.  Why?  Well remember when you got your drivers license and you signed a form well one of the things you consented to for the privilege of driving is that you would submit to a chemical test when requested by law enforcement.  IF YOU ARE ARRESTED you have to take a blood, breath, or urine…. Another week I will answer which one is the best.  But under the implied consent law, you have to take one.

If you refuse to take a test not only can it make your sentence worse for the DUI itself but it also will cost you your license for a year with a first time DUI and 2 years revocation on 2nd one.  THE DMV can still revoke your license EVEN IF YOU ARE ACQUITTED OF THE DUI.

So I know what you are thinking….ok if I refuse worst-case scenario is the DUI is gone and I lose my license for a year.  That's better than a DUI.  Well, maybe.  Keep in mind that prosecutors may have other things to convict you. For example, they will talk about your driving pattern, the smell of alcohol on your breath, how you looked (like do you look disheveled or look like Lindsay Lohan), they will use the statements you make (by the way everyone says they just had 2 beers), they will use how you preformed on the pesky field sobriety test you know the one's touch your nose, follow the pen, stand on one foot, say the alphabet and GET THIS---the prosecutor can USE YOUR REFUSAL TO argue CONSCIOUSNESS OF GUILT.   In other words, the prosecutor can argue you knew your were guilty.   So, in the end you may get convicted and lose your license for a year.

If you have a legal question that you have not know who to ask, post then for me on MyFox LA Facebook page.

Robin Sax

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