Can You Refuse a PAS Breath Test in California? Rights & Laws

If a law enforcement officer pulls you over on suspicion of DUI in California, you will probably be asked to breathe into a handheld breathalyzer device. This is called a Preliminary Alcohol Screening (PAS) breath test.

Although police officers often speak with an authoritative tone suggesting obedience is required, the reality for most drivers is different.

Under California law, you generally have the right to refuse a roadside breath test before an arrest occurs.

Often, officers speak with authority, which can make you feel obligated to comply. However, adult drivers are not required to undergo blood alcohol tests unless they are formally arrested.

Police officers usually won't inform you that it's your choice. The PAS test is just a field sobriety test (FST), like touching your nose with your finger or walking in a straight line. It is another method police use to determine if they should arrest you.

The Esfandi Law Group can help you. Schedule your free consultation at (310) 274-6529 or use the contact form.

💡 Quick Answer: Can you refuse a PAS breath test in California?

Yes. If you are at least 21 years old and not on probation for a previous DUI, you can legally decline a preliminary alcohol screening (PAS) breath test in California without risking automatic penalties or license suspension. The PAS functions as a voluntary field sobriety test (FST).

What is a PAS Breath Test?

A Preliminary Alcohol Screening (PAS) test is a roadside instrument used by law enforcement to approximate a driver's Blood Alcohol Concentration (BAC).

Understanding the structural difference between a pre-arrest and post-arrest breath test is essential.

Test Type	Timing	Is it Mandatory?	Device Used	Purpose
PAS Test	Pre-Arrest (Roadside)	Voluntary (with exceptions)	Handheld Breathalyzer / EPAS	To establish probable cause for an arrest.
Chemical Test	Post-Arrest (Station/Hospital)	Mandatory (Implied Consent)	Evidential Breath Test (EBT) or Blood Test	To gather official evidence for trial.

Note on EPAS: In places like Orange County and Ventura County, police deploy an Evidential Portable Alcohol System (EPAS). These internet-enabled devices can sometimes blur the distinction between a preliminary screening and a formal post-arrest test. Make sure to clarify your arrest status with the officer.

California DUI Laws & Legal Exceptions

While the PAS test is voluntary for most motorists, California law outlines two strict exceptions in which refusing a roadside breath test carries immediate consequences.

1. Drivers Under the Age of 21

Applicable Law: California Vehicle Code (CVC) § 23136 & CVC § 23140 (Zero Tolerance Law)
Description: California strictly enforces a zero-tolerance policy for underage drinking and driving. Anyone under 21 suspected of DUI is required to take a PAS test. Refusing the test results in an automatic administrative suspension of your driver's license by the DMV.

2. Drivers on Active DUI Probation

Applicable Law: California Vehicle Code (CVC) § 23154
Description: As a standard condition of DUI probation in California, individuals must submit to a preliminary breath test upon the request of a peace officer. Refusal constitutes a violation of probation, leading to additional charges, penalties, and license suspension.

3. Post-Arrest Implied Consent Law

Applicable Law: California Vehicle Code (CVC) § 23612
Description: Once you are lawfully arrested for DUI, California's Implied Consent Law applies. You cannot refuse chemical testing anymore. If you refuse a blood or breath test after arrest, your license will be automatically suspended for one year, and you may face increased penalties if convicted.

Pros and Cons of Declining a Roadside PAS Test

Why Drivers Choose to Decline the PAS Test

High Margin of Error: Handheld PAS devices are susceptible to calibration errors, environmental interference, and typically have about a 15% margin of error. An inaccurate reading might result in an unwarranted arrest.
Avoiding False Positives: Certain diets, medical conditions such as GERD, or residual mouth alcohol can cause a false positive BAC reading even if you're sober.
Limiting State's Evidence: A PAS test primarily aims to assist officers in establishing "probable cause" for your arrest. Without the digital reading, the state depends more on subjective observations.

Risks Associated with Refusing the PAS Test

Increased Officer Suspicion: Politely refusing the test might cause the officer to think you're hiding intoxication, leading them to rely primarily on standard Field Sobriety Tests like the one-leg stand or walk-and-turn.
Arrest is Still Possible: Law enforcement officers can arrest you for a DUI even without a PAS test result if they notice other signs of impairment, such as slurred speech, bloodshot eyes, or poor driving behavior.
Potential Court Arguments: In certain situations, a prosecutor might try to present a pre-arrest refusal as evidence of "consciousness of guilt" during trial, but an experienced defense lawyer can challenge this argument.

How to Handle a Roadside DUI Stop Properly

If you choose to refuse a voluntary preliminary breath test, it is important to manage the situation properly:

Remain Calm and Polite: Avoid arguing or being confrontational with law enforcement. Showing aggression can be used as evidence of impairment or result in additional charges.
State Your Rights Clearly: You can say, "I am exercising my right to decline this preliminary screening test, and I would like to consult with an attorney."
Comply After an Arrest: If the officer still places you under arrest, you are required to undergo a chemical blood or breath test afterward to prevent serious implied consent penalties.

If you've been arrested for a DUI after refusing or taking a PAS test, it's crucial to seek professional legal advice to safeguard your driving rights. Reach out to the knowledgeable legal team at Esfandi Law Group today for a thorough case assessment.

🚙 Real-World Example: A Roadside DUI Stop

To see how California's PAS laws operate in real situations, look at this example:

The Setup Sarah is driving home in Los Angeles at 11:30 PM when a police officer observes her vehicle swerving slightly over the lane line and pulls her over. During the interaction, the officer detects the smell of alcohol and notices her eyes appear watery.

The Request The officer requests that Sarah exit the vehicle to undergo a series of Field Sobriety Tests (FSTs), such as a walk-and-turn test. After completing these tests, the officer takes out a handheld device and instructs, "I need you to blow into this preliminary alcohol screening device to measure your alcohol level."

The Rights in Action (Based on Sarah's Profile):

Scenario A (Adult Driver, No Probation): Sarah, 28, has a clean driving record. Since she is over 21 and not on DUI probation, she has the legal right to politely refuse the handheld PAS test. She states, "I choose not to take the preliminary breath test." Although she cannot be penalized solely for refusing, the officer may still arrest her if her physical FST performance and driving behavior provide enough probable cause.
Scenario B (Underage Driver): Sarah, aged 19, is subject to California's Zero Tolerance Law since she is under the legal drinking age. She cannot legally refuse a PAS test. If she declines, her driver's license will be automatically suspended for one year by the DMV, even if she was not impaired.
Scenario C (Prior DUI Probation): Sarah, 34, is currently on a three-year probation for a previous DUI. According to CVC § 23154, she is legally obliged to take the test; refusing will lead to a probation violation and a license suspension.

The Post-Arrest Shift: If Sarah matches Scenario A and declines the roadside test, but the officer still arrests her due to her driving behavior, the situation shifts once she's handcuffed and told she's under arrest.

She is now subject to the Implied Consent Law. She is taken to the police station, where she must undergo an official, evidential blood or breath test.

If she refuses this post-arrest chemical test, she will automatically face a one-year license suspension and increased legal penalties in court.

Frequently Asked Questions (FAQs)

Can the police arrest me if I refuse the roadside breath test?

Yes. An officer does not require a breathalyzer reading to make a DUI arrest. Probable cause can be established through other signs like erratic driving, alcohol odor, slurred speech, bloodshot eyes, or results from physical Field Sobriety Tests (FSTs).

Is a PAS test the same as the breathalyzer at the police station?

No. The PAS test is a quick, portable screening device used roadside prior to an arrest. The Evidential Breath Test (EBT) is a more advanced, strictly regulated machine located at the police station or jail used after a formal arrest.

What happens if I refuse the breath test after I am arrested?

Refusing a chemical test after a lawful arrest breaches California's Implied Consent Law (CVC § 23612). Consequently, the DMV automatically suspends your driver's license for one year, and your refusal can be presented as evidence against you in court.

Does a PAS refusal show up on my driving record?

For adults over 21 who are not on probation, legally refusing a pre-arrest PAS does not add points or negatively affect your DMV driving record. However, if you are under 21 or on DUI probation, refusing will lead to immediate administrative action against your license.

Speak with a Los Angeles DUI Lawyer

Dealing with California's implied consent laws, PAS tests, and DMV hearings can be daunting. A single error during or after a traffic stop may lead to license suspension, hefty fines, and a lasting criminal record.

If you or a loved one has been pulled over or arrested for a DUI in Southern California, you don't have to navigate the legal process alone.

The details of your roadside stop—such as whether the officer correctly explained your rights concerning the PAS breath test—can significantly influence your case's outcome.

Why Contact Esfandi Law Group?

Deep Local Expertise: Our legal team is well-versed in the tendencies, courts, and procedures of the Los Angeles, Orange County, and Ventura County legal systems.
Challenging Breathalyzer Accuracy: We are skilled at auditing calibration logs of handheld PAS and EPAS devices to detect margins of error, false positives, or illegal police actions.
DMV Hearing Representation: We vigorously defend clients at DMV administrative per se hearings to safeguard their driving privileges and avoid automatic license suspensions.

Schedule Your Free Case Evaluation Today

Don't leave your future up to chance. Consult an experienced Los Angeles DUI attorney who can analyze the police report, assess whether your breath test refusal was lawful, and create a personalized defense strategy.

Contact the Esfande Law Group today to discuss your rights and take control of your defense.

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