What Happens If You Refuse a Breath or Blood Test in California?
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People often assume that refusing a breath or blood test after a DUI stop protects them, since there's "no evidence" of a BAC number. In California, it usually backfires. Refusing the wrong test at the wrong stage triggers its own automatic penalties — separate from, and sometimes worse than, a straightforward DUI. Here's the difference between the two tests California uses, and what refusing each one actually means.
In this guide
Implied consent: what you agreed to by driving
Under California's implied consent law (Vehicle Code 23612), anyone who drives in California has already agreed, as a condition of holding a license, to submit to a chemical test if lawfully arrested for DUI. You don't sign anything at the moment of arrest — the consent is built into the privilege of driving. That consent applies specifically to the post-arrest evidentiary test, not to every test an officer might ask you to take at the roadside.
The PAS test vs. the post-arrest chemical test
This is the distinction that trips people up, because California actually uses two different breath tests at two different stages:
Roadside PAS test (pre-arrest)
- A handheld device used before arrest, to help establish probable cause
- Generally optional for drivers 21 and over who aren't on DUI probation
- Declining it does not trigger the implied-consent refusal penalties
Post-arrest chemical test
- A breath or blood test administered after a lawful DUI arrest
- Mandatory under implied consent — this is the one VC 23612 covers
- Refusing it triggers automatic penalties described below
In short: declining the little handheld device at the roadside is generally not the same thing as "refusing the test," but once you're actually arrested, refusing the breath or blood test at the station is.
What happens if you refuse the post-arrest test
A refusal suspension is longer than a typical first-DUI suspension — and mandatory
Refusing the post-arrest chemical test triggers a mandatory DMV license suspension under Vehicle Code 13353 — generally one year for a first refusal, with longer mandatory suspensions and required ignition interlock for a second or third refusal within 10 years. This applies even if you're never convicted of the underlying DUI.
That last point is what surprises people most: a refusal-based suspension is separate from whatever happens with the DUI charge itself. You could ultimately win the DUI case in court and still face a full year without a license because of the refusal alone.
How refusal affects the criminal case
Beyond the DMV consequence, prosecutors can and often do use a refusal as evidence at trial — arguing it shows "consciousness of guilt," the theory being that an innocent person would have taken the test to prove their sobriety. A refusal can also serve as a sentencing enhancement if you're convicted of the underlying DUI, in some cases adding mandatory jail time that wouldn't otherwise apply.
The refusal DMV hearing
Just like a standard DUI arrest, a refusal case still runs on the 10-day DMV hearing deadline — you or your attorney must request a hearing within 10 days to contest the refusal finding itself. A refusal hearing focuses on different questions than a standard APS hearing: primarily, whether you were properly advised of the consequences of refusing and whether your conduct actually constituted a refusal (partial or ambiguous responses are sometimes contested as not a true refusal).
Frequently asked questions
Is refusing the roadside breath test the same as refusing the test at the station?
How long is a license suspended for refusing a DUI test in California?
Can a refusal be used against me even if I'm found not guilty of DUI?
Do I still have a deadline to fight a refusal suspension?
Sources
- Cal. Vehicle Code § 23612 (implied consent) — leginfo.legislature.ca.gov
- Cal. Vehicle Code § 13353 (chemical test refusal suspension) — leginfo.legislature.ca.gov
- California DMV — Driving Under the Influence (Administrative Per Se / refusal overview)
Ron has focused on DUI and criminal defense from his Irvine office since 2009. You work directly with him — not a paralegal or a call center.
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