What this means legally depends on which test you are talking about. Confusion during a roadside screening or field sobriety test is different from confusion during the official breath, blood, or urine test that follows an arrest, and California treats them very differently.

The roadside test and the official test are not the same thing

Officers often use a small handheld breath device at the roadside, before any arrest, called a preliminary alcohol screening test, or PAS. California law classifies the PAS as a field sobriety test (Vehicle Code section 23612(h)). When an officer uses one in a DUI investigation, the officer must explain that you may refuse it, and that taking it does not replace the official test: your obligation to take a chemical test after an arrest “is not satisfied by the person submitting to a preliminary alcohol screening test” (23612(i)). Different rules apply if you are under 21 or on probation for DUI. In those cases an officer with reasonable cause must request a PAS when a device is available, and refusing or not completing it can itself lead to a one- to three-year suspension or revocation (Vehicle Code section 13388, section 13389, and section 13353.1). Much of the confusion during a stop comes from not realizing that the roadside device and the official test are two separate things with different rules.

The official chemical test: not finishing can count like refusing

Once you are lawfully arrested for DUI, the rules change. The officer must warn you that refusing, or failing to complete, the required breath, blood, or urine testing will lead to a one-year license suspension or, with certain DUI-related convictions or DMV suspensions in the past 10 years, a revocation of two or three years (23612(a)(1)(D)). The statute lists failing to complete a test right alongside refusing it, and either one leads the officer to serve the suspension notice on you personally (23612(e)). In an alcohol case you choose blood or breath, and the officer has to advise you of that choice; if you are, or say you are, unable to complete the one you chose, the law requires you to take the other (23612(a)(2)(A)).

Nothing in the statute carves out an exception for being confused, nervous, or not understanding the officer clearly. That does not make your side of the story irrelevant. To sustain a refusal suspension, the DMV must find that you refused, or failed to finish, the testing after an officer asked, and that you had been told the consequences (Vehicle Code section 13557(b)(1)); disputing that finding is its own topic. What decides it is the specific, provable record: what the officer actually said, in what words, and what you actually did in response, not a general claim that you were confused. That record, including any recording of the exchange, is what a lawyer needs to see.

You have no right to a lawyer present before deciding

Many people assume they can wait to decide until they talk to an attorney. For this specific decision, California law says otherwise. The officer must advise you that there is no right to have an attorney present before you say whether you will take a test, before you decide which test to take, or while the test is given, and that a refusal may be used against you in court (23612(a)(4)).

Field sobriety tests are a different category

The walk-and-turn, the one-leg stand, and similar roadside coordination tests are not the chemical test described above. The implied-consent rule and its refusal suspension attach to the breath, blood, or urine test after a lawful arrest (23612(a)(1)), so how those roadside tests went is a question about the evidence, not a chemical-test refusal. For the specifics of each test and how they are commonly challenged, see field sobriety tests.

What to do now

  • Do not assume confusion automatically protects you, and do not assume it automatically counts against you either; get the actual record reviewed.
  • Ask your lawyer to obtain the exact wording the officer used and any body camera or dashcam recording of the exchange.
  • If you were served with a suspension notice, you have 10 days from receiving it to request a DMV hearing before the suspension takes effect (Vehicle Code section 13558(b)); see DMV hearing defense for how that process works.
  • Write down, as soon as possible, exactly what you remember being asked and what you remember doing, while it is still fresh.

If you are unsure whether what happened during your DUI stop counted as a refusal, an incomplete test, or something else, the Law Offices of David S. Chesley can examine the record and explain where your case actually stands. Call (800) 755-5174 to go over what was said and done.