Refused a Breathalyzer in California? Here’s What Happens Next

Posted on: October 25th, 2026 by Dod Ghassemkhani, ESQ

Refused a Breathalyzer in California

If you refuse a breath or blood test after a lawful DUI arrest in California, you face an automatic one-year license suspension from the DMV for a first offense, plus added jail time if you are later convicted of DUI. Refusing the roadside breathalyzer before arrest is different and usually carries no penalty for adult drivers. Below, San Diego DUI attorney Dod Ghassemkhani explains California’s implied consent law, the penalties for refusal, and how a refusal case can be defended. Learn more what happens by an award-winning criminal defense lawyer if you have refused a breathalyzer in California.

By Dod Ghassemkhani | Award-Winning Criminal Defense Lawyer

What Is California’s Implied Consent Law?

Under Vehicle Code § 23612, anyone who drives in California is deemed to have agreed to a chemical test of breath or blood if lawfully arrested for DUI. After arrest, you generally get to choose between a breath test and a blood test. Choosing one is not a refusal. Refusing both, or failing to complete the test you choose, is.

Is the Roadside Breathalyzer Different From the Test After Arrest?

Yes, and this is where many drivers get confused. Before an arrest, an officer may ask you to blow into a handheld device called a preliminary alcohol screening (PAS) test. For most drivers 21 and older, that roadside test is voluntary, and the officer is supposed to tell you so.

The PAS test is not voluntary if you are:

• Under 21 (California’s zero tolerance law)
• On probation for a prior DUI

The implied consent penalties apply to the chemical test requested after a lawful arrest.

What Are the DMV Penalties for Refusing a Chemical Test?

Refusal triggers an administrative action by the DMV, separate from any criminal case:

Prior DUI or refusal within 10 years	DMV penalty
None	1-year suspension
One	2-year revocation
Two or more	3-year revocation

These penalties are longer than the standard four-month suspension for a first DUI with a test result, and options for a restricted license are more limited. You have only 10 days from your arrest to request a DMV hearing to challenge the suspension. Learn more in our guide to how much a DUI costs in San Diego.

What Happens in Criminal Court After a Refusal?

If you are convicted of DUI and the court finds you willfully refused, Vehicle Code § 23577 adds mandatory jail time:

• First offense: 48 additional hours
• Second offense: 96 additional hours
• Third offense: 10 additional days

Prosecutors can also tell the jury about the refusal and argue it shows you believed you were intoxicated.

Can Police Force a Blood Test If You Refuse?

Sometimes. Under Missouri v. McNeely (2013), police generally need a warrant for a nonconsensual blood draw. In San Diego County, officers can often get a warrant quickly, sometimes by phone. If they do, your blood can be drawn anyway, and you may face both the refusal penalties and test-result evidence.

How Can a DUI Refusal Be Defended?

Dod Ghassemkhani has more than 20 years of criminal defense experience, has handled over 6,500 cases and tried more than 100 jury trials, and was named San Diego County’s 2023 Trial Lawyer of the Year by the San Diego Criminal Defense Bar Association. In refusal cases, he examines whether:

• The arrest was lawful. Without a valid stop and probable cause, implied consent penalties should not apply.
• The officer gave the required warning. Officers must explain the consequences of refusal. A missing or confusing admonition is a common defense.
• You actually refused. Confusion, a request to speak with a lawyer, or a medical inability to complete a breath test may not count as a willful refusal.
• The officer pressured you about the roadside test. Drivers are often told the PAS test is required when, for most adults, it is not.

A strong defense can protect your license at the DMV hearing and reduce or defeat the refusal allegation in court.

Frequently Asked Questions | Refused a Breathalyzer in California

Act Now!  Refused a Breathalyzer in California? Call Dod Law Today

The 10-day DMV deadline starts the day of your arrest. Dod Law defends drivers throughout San Diego County and Orange County. Contact us for a confidential consultation with Dod Ghassemkhani. Learn more about our San Diego DUI defense. Open 24/7. Call 619-814-5110.  Serving San Diego and Southern California.

Disclaimer: The information provided in this blog is intended for general informational and educational purposes only and should not be construed as legal advice. Reading this article does not create an attorney-client relationship with Dod Law or Dod Ghassemkhani, Esq. Every criminal case is unique, and the laws, legal principles, and procedures discussed may not apply to your specific circumstances.

You should not act upon or rely on any information contained in this article without first consulting a qualified criminal defense attorney regarding your particular situation. If you have been arrested, are under investigation, or are facing criminal charges in San Diego County and Southern California, contact Dod Law to schedule a confidential consultation with Dod Ghassemkhani, Esq., and receive legal guidance tailored to your case.