DUI Implied Consent Law and Chemical Testing
Vehicle Code § 23612
- Preliminary Alcohol Screening (“PAS”)
- Chemical Testing
1. Preliminary Alcohol Screening
What is a preliminary alcohol screening (“PAS”) under Vehicle Code § 23612?
A preliminary alcohol screening (“PAS”) test indicates the presence or concentration of alcohol based on a breath sample. A PAS test can be used by police to establish reasonable cause to believe the person was driving a vehicle while under the influence of alcohol, drugs, or both.
If the officer decides to use a PAS test, the officer must advise the person that he or she is requesting that person to take a PAS test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs.
Do I have to submit to a PAS under Vehicle Code § 23612?
No. The officer must advise the person of his or her right to refuse to take the PAS test. Additionally, the obligation to submit to a blood, breath, or urine test is not satisfied by the person submitting to a PAS test.
If you submit to a PAS test and it reveals you have been drinking alcohol, you will be required to submit to further chemical testing.
2. Chemical Testing
What is “chemical testing” under Vehicle Code § 23612?
Vehicle Code § 23612 states that if a person is arrested for a DUI under VC § 23140, VC § 23152, or VC § 23153, that person automatically has consented to do either a breath test or a blood test to determine the amount of alcohol in that person’s blood. This is true if the person is suspected of driving under the influence of alcohol, drugs, or both.
What chemical test do I have to do under Vehicle Code § 23612?
The person has the choice of doing either a blood or breath test. The officer must tell the person that he or she has that choice. But, if the person arrested is not capable of completing the chosen test, the person must submit to the other test. If neither a breath test nor blood test is available, then the law requires that person to submit to a urine test.
Do I have a right to an attorney under Vehicle Code § 23612?
There is no right to attorney during DUI chemical testing under VC § 23612. The officer must advise the person that he or she does not have the right to have an attorney present 1) before stating whether he or she will submit to a test or tests, 2) before deciding which test or tests to take, or 3) during administration of the test or tests chosen.
Who is considered “incapable” of completing a blood test under Vehicle Code § 23612?
People suffering from hemophilia or a heart condition may be exempt from a blood test. However, these people will have to submit to other testing such as a breath or urine test.
What happens if an officer believes you are under the influence of drugs under Vehicle Code § 23612?
A person who chooses to submit to a breath test may also be requested to submit to a blood test if the officer has reasonable cause to believe that the person was driving under the influence of a drug or a combination of alcohol and drugs.
The officer must state in his or her report the facts that made him or her believe the person is under the influence of drugs. The officer must tell the person that he or she is required to submit to an additional blood test and the person must submit to and complete a blood test. If the person arrested is incapable of completing the blood test, the person must submit to and complete a urine test.
What happens if the person is unconscious under Vehicle Code § 23612?
A person who is unconscious is deemed not to have withdrawn his or her consent. This means that a test or tests may be administered whether or not the person is told that his or her failure to submit to, or the non-completion of, the test or tests will result in the suspension or revocation of his or her privilege to operate a motor vehicle.
Additionally, a person who is dead is deemed not to have withdrawn his or her consent and a test or tests may be administered at the direction of a police officer.
What happens if I refuse all chemical testing under Vehicle Code § 23612?
The person’s driver’s license will be suspended or revoked (see below). The police officer will take possession of all California driver’s licenses held by the person. The person will then be given a temporary driver’s license that will be valid for 30 days from the date of arrest. The police officer will notify the DMV about the license suspension.
What are the punishments for a violation of Vehicle Code § 23612 for refusing a chemical test?
Failing to submit to or to complete the required testing will result in a fine and mandatory imprisonment if the person is convicted of a violation of VC § 23152 or VC § 23153. The law requires that a police officer inform the person of these consequences if the person refuses chemical testing and that the refusal may be used against him or her in a court of law.
Additionally, the officer must tell the person that his or her failure to submit to, or the failure to complete, the required breath, blood, or urine tests will result in:
- 1 Year License Suspension: it is a first time DUI refusal
- 2 Year License Suspension: the refusal occurs within 10 years of a separate DUI or refusal
- 3 Year License Suspension: the refusal occurs within 10 years of 2 or more DUIs or refusals
4. Defenses to Vehicle Code § 23612
If the person, through no fault of his or her own, is incapable of understanding the admonition or of submitting to the test, the defendant cannot be penalized under Vehicle Code § 23612 for refusing chemical testing.