After almost 13 years of representing hundreds upon hundreds of individuals who have been charged with a DUI, I can tell you that there is great confusion as to what tests a person is legally required to take should they find themselves the focus of a police DUI investigation. In almost every DUI investigation there are a number of tests you are asked to perform in an effort to assist the police in determining if you were driving under the influence of alcohol and/or drugs. These tests include field sobriety tests (also known as FSTs), the preliminary alcohol screening test (also known as the “PAS” test) and a breath, blood or urine test often administered at the police station or hospital subsequent to an arrest. The following breakdown is meant to clarify any such confusion should you find yourself in the midst of a DUI investigation.
Field Sobriety Tests (FSTs): No. You do not have to take these tests. FSTs are a series of balance and coordination tests used to help determine if a person is intoxicated. The officer will ask you to perform anywhere from 3 to 5 FSTs to test not only your balance, coordination and alertness but also your ability to follow instructions. Some of the more common FSTs are the horizontal gaze nystagmus, walk the line, touch the nose and stationary balance test.
Preliminary Alcohol Screening (PAS): No. You do not have to take this test. This test is normally administered at the scene of the stop prior to any arrest. The officer will present a hand-held plastic device and tell you to blow into it in order to measure the amount of alcohol in your blood. This test is not legally required although an officer will rarely tell you this and often make it seem as though you have to take it. The fact is you don’t. Failure to take this test holds no legal consequence and, actually, gives the police one less fact to rely on to prove if you were driving under the influence.
Breath, Blood or Urine Test After Lawfull Arrest: Yes. You have to take one of these tests. I think this is where most of the confusion lies. In California, if you are lawfully arrested for a DUI, you are legally required to submit to a breath, blood or urine test at the police station. This is knows as California’s “Implied Consent” law. Vehicle Code Section 23612 states “A person who drives a motor vehicle is 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 an offense allegedly committed in violation of [the DUI laws].” It is important to note that this law applies only to the test administered after a lawful arrest. You should also be given a choice as to which test you want to take …i.e. breath, blood or urine. If you do not take one of these tests you will not only be charges with a DUI, but you will also be charged with the “Refusal” enhancement which can have serious consequences such as the imposition of jail time and suspension of your driver’s license for 1 year if you suffer a conviction.
Anytime a police officer asks you to do something and you don’t do it, they are almost always going to think you are not being cooperative. Rest assured, that if you tell the officer(s) what you will and will not do during their investigation they may not treat you so kindly. In any case, be nice and politely tell them that you have been advised not to take these tests. Also, make it clear to them that you WILL submit to the test at the station so they do not just right you off as a someone who is refusing to cooperate.
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