Memorial Day weekend is the first big holiday of the summer, even though the summer doesn’t officially begin until the third week of June. Nevertheless, Californians will travel to lakes and campsites around the state to celebrate the holiday.
As with other holiday weekends, law enforcement agencies will be out in force to enforce California’s drunk driving laws. Invariably drivers will be stopped and asked to perform field sobriety tests or breathalyzer tests to determine if there is probable cause for an arrest. Many will believe that they are legally compelled to take these tests, but there are certain situations where a driver may legally refuse to do so.
Generally speaking, California drivers may refuse to perform a pre-arrest breathalyzer test (PAS) if they are over the age of 21 and are not on probation for a prior DUI. The same applies to field sobriety tests. These tests are not necessarily determinative of guilt outside of obvious situations (i.e. a person is visibly impaired), and those who may not legally refuse roadside tests should not have any alcohol in their systems while behind the wheel.
Nevertheless, law enforcement officers may still attempt to get drivers to perform these tests through seemingly innocuous promises or statements, such as:
“I just want to make sure you are safe to drive.”
“This doesn’t mean that you are guilty of a crime.”
“These tests are not admissible in court.”
“This is something that we do.”
Unfortunately, neither of these statements are true, but they can adversely affect you. In fact, if an officer asks you to perform a roadside test, it is likely to gather more evidence to support probable cause to arrest you. If you perform a breathalyzer test that results in a zero reading, the officer may suspect that drugs are involved. If a test results in a reading close to or above .08, you will likely be arrested on suspicion of impaired driving anyway.
The key is that refusing pre-arrest tests may not prevent you from using a number of defenses if you are charged with a crime. At the same time, a refusal prevents law enforcement from gaining critical evidence to be used against you at trial.
While the preceding is not legal advice, an experienced criminal defense attorney can analyze your unique circumstances and help you make an informed decision about your case.