California DUI: Can Charges Be Dropped? Can You Refuse a Breathalyzer?
Our DUI clients often ask us whether we can get charges dropped. Another common question is whether our client was justified in refusing to take a breathalyzer test. We briefly discuss these issues in this blog.
We understand that getting pulled over for a DUI in California is a high stress and often high-stakes situation. Because California has some of the strictest traffic laws in the country, understanding the specific rules of the Golden State is vital. Two questions dominate the minds of those arrested:
Can You Refuse a Breathalyzer in California?
In California, the answer depends entirely on when the test is requested. Under CVC 23612 (California’s Implied Consent Law), by driving in this state, you have already consented to chemical testing if you are lawfully arrested.
1. The Roadside PAS Test (Pre-Arrest)
If you are pulled over but not yet under arrest, the officer may ask you to blow into a Preliminary Alcohol Screening (PAS) device.
The Rule: For most drivers over 21, this test is voluntary. You can politely refuse it without an automatic license suspension.
The Exception: If you are under 21 or already on DUI probation, you must take the PAS test.
2. The Post-Arrest Chemical Test (Evidentiary)
Once you are officially arrested, you no longer have a choice. You must choose between a breath or blood test. Refusing at this stage triggers immediate and severe "Refusal Enhancements" under California law:
Automatic License Suspension: The DMV will suspend your license for one year (first offense) with no possibility of a restricted/work license. A second refusal within 10 years results in a two-year revocation.
Mandatory Jail Time: A refusal adds mandatory jail time to the standard DUI sentence (typically 48 hours for a first offense).
Longer DUI School: You may be required to complete a 9-month alcohol program instead of the standard 3-month program.
Forced Blood Draw: In many California counties, police can quickly obtain a "telephonic warrant" to legally force a blood draw if you refuse.
Clients argue that the arrest was unfair or the officer was going to influence the breath or blood test. These are issues a lawyer can raise after the fact but raising them on the scene will be deemed a violation of the law. A refusal can also be introduced at trial to show a consciousness of guilt.
Can California DUI Charges Be Dropped?
Yes, it is possible for charges to be dismissed or reduced, but it rarely happens without an aggressive legal challenge. In California, prosecutors often look for ways to resolve cases through "plea bargains" or dismissals if the evidence is compromised.
Common Ways Charges Are Dropped or Reduced:
The Illegal Stop: If the officer pulled you over without "reasonable suspicion" (e.g., you weren't actually swerving or violating a code), all evidence gathered afterward can be suppressed.
Title 17 Violations: California's Title 17 regulations dictate exactly how breath and blood tests must be administered. If the officer didn't observe you for 15 continuous minutes before the breath test, or if the lab didn't use enough preservative in your blood sample, the results may be thrown out.
Rising Blood Alcohol: In California, it is illegal to have a BAC of .08% at the time of driving. If your BAC was rising and you were actually below the limit while behind the wheel, but peaked later at the station, the case can be challenged. This is usually a jury issue unless the evidence is so clear that pretrial you can show close to a zero level while driving.
The "Wet Reckless" (CVC 23103.5): This is the most common reduction in California. It is a reckless driving charge that notes alcohol was involved. It carries lower fines, no mandatory jail, and shorter probation than a standard DUI.
The Two-Front Battle: Court vs. DMV
In California, a DUI is actually two separate cases:
Criminal Court: Deals with fines, jail time, and your criminal record.
DMV Administrative Hearing: Deals solely with your driving privilege. We have succeeded in DMV hearings and then used this success to argue that charges should not be filed in the criminal court.
Crucial Deadline: You (or your lawyer) have only 10 days from the date of your arrest to request a hearing with the California DMV. If you miss this window, your license will be automatically suspended 30 days after your arrest, regardless of what happens later in court.
What Should You Do Now?
If you’ve been arrested for a DUI in California, time is your biggest enemy. Don't try self help particular at DMV hearings. Daniel Horowitz is a criminal defense specialist certified by the State Bar of California's Board of Legal Specialization. Call Daniel to schedule an initial consultation at (925) 283-1863.
