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The emphasis California places on apprehending and prosecuting motorists suspected of driving under the influence of drugs or alcohol is evident by the laws in place to assist law enforcement in collecting evidence of intoxication. Chemical test results are an effective method for gathering evidence to prove a driver’s blood alcohol ration exceeded legal levels. Refusing to submit to a chemical test could subject you to penalties even if you are later acquitted of the DUI charges.

Breathalyzer and chemical testing results as evidence

Operation of a motor vehicle while your blood alcohol content is 0.08 percent or higher is, under California law, per se intoxication. Prosecutors can obtainSan Diego dui attorney a conviction for DUI simply by submitting the BAC report into evidence along with testimony of the arresting officer of your operation of a motor vehicle.

Chemical testing is accomplished by taking samples through one of three methods:

  • Breath testing
  • Blood testing
  • Urine testing

The most commonly used method is breathe testing using equipment into which a motorist blows to produce a breathe sample the machine analyzes to measure the BAC. Breathe tests are administered after the motorist is placed under arrest, although there is a preliminary alcohol screening test officers can administer at the side of the road, but the BAC report produced in court and used as evidence of intoxication is generated by the post-arrest test.

Implied consent and its consequences

It might seem as though the best course of action to take when asked to submit to a chemical test is to refuse to take it. This is where the implied consent law comes into play.

All motorists operating a vehicle in California agree to submit to a chemical test if requested by a police officer who has reason to believe they were driving under the influence. Refusing to take a test subjects a motorist to the following penalties and consequences:

  • Driver’s license automatically suspended
  • Fines up to $1,000
  • Jail sentence up to four months

The consequences of a test refusal are separate from and in addition to the penalties a driver faces if convicted of the DUI charge. It is important to note that the absence of chemical test results does not mean a person cannot be prosecuted for DUI. It merely changes the evidence prosecutors must rely upon to prove the charges. For example, proof of driving under the influence can be accomplished through the testimony of the arresting officer about what he or she observed about the conduct and behavior of the motorist while driving and after the vehicle was stopped by police.

Defenses to a charge of refusing a chemical test

Police officers must advise a person of the consequences associated with refusing to submit to a chemical test. If the officer fails to do so, the refusal charge might be dismissed. Another challenge to a refusal charge has to do with the timing of the request made by the police.

California law provides that testing must be done following a person’s arrest on a DUI charge. If a person was not placed under arrest before being asked to submit to a chemical test, the request might not have been valid.

Consult a San Diego DUI attorney about your rights

Your best source of advice and representation in an implied consent situation is a criminal defense attorney experienced in handling DUI cases. An attorney at The Law Offices of Kerry Armstrong can provide answers to questions and address concerns about chemical testing and implied consent.


Author Photo

Kerry L. Armstrong

Attorney Kerry Armstrong opened up his law firm, the Law Offices of Kerry L. Armstrong, APLC, in June 2007. In 2014, 2015, 2016, 2017, 2018, and 2019 Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys. In 2017, he was also selected for the Super Lawyers Top 50 in San Diego list. In 2014, he was selected as a Top Attorney by Los Angeles Magazine. Additionally, Mr. Armstrong was also named as a Top Attorney by the San Diego Business Journal in 2014.

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