There’s a big difference between a portable breath test machine and a full size breath test machine. The portable version is often carried around by patrol officers and used in the field to gauge a person’s breath alcohol content.

The full version of the machine is typically stationary, plugged into a wall, and located in a dedicated section of a professional building, like police station or hospital. Although they are based on the same principles, the portable version of the machine is nowhere near as accurate or dependable as the full version.

This is why a portable breath test can be refused, but a full breath test is considered on par with blood tests and urine tests when it comes to chemical testing under California’s implied consent laws. Under these laws, a person suspected of driving under the influence of drugs or alcohol has the option of choosing between a blood, breath, or urine chemical test, with a breath test administered using the full version of a breathalyzer, not a portable version.

Refusal Allowed, Generally

In general, anyone operating a motor vehicle in California has the right to refuse drug or alcohol tests except for those outlined in California’s implied consent laws, which include chemical tests of either the person’s blood breath or urine.

However, exceptions exist for those who are on probation for offenses related to a previous charge for driving under the influence. These exceptions make it a crime for a person previously charged with driving under the influence and currently on probation for the charge to refuse a portable breath test.

It doesn’t matter why the person on probation is pulled over, all that matters is the person’s status on probation for a DUI related offense. In other words, a person on probation for DUI can be pulled over for speeding, running a stop sign, failing to wear a seat belt, or any other violation outlined in California’s traffic code, and be charged with a crime if that person refuses to submit to a portable breath test.

Despite the fact that the portable breath test is not as accurate as the full version of the machine that administers the test, the portable breath test is used as a tool by law enforcement to gather evidence in support of further investigation.

Probationers and DUI Breath Tests

If they are currently on probation for an offense related to driving under the influence, individuals are encouraged to comply with legal requirements for tests, but to preserve all other rights as they are granted under the law. Just because a probationer is required to submit to a portable breath test, it does not mean that the probationer has to answer questions or make any statements.

There is no legal requirement for even probationers to respond to questions from police regarding where they are coming from, where they are going, how much they have had to drink, or the last time that they had a drink. The same is true for those not on probation.

Individuals not on probation should refuse all tests except those outlined by implied consent laws, which will be either a test of blood, breath, or urine. However, just because these tests are performed, it does not mean that the suspect of DUI should begin answering questions or making statements. Instead, they should let the test be performed, and then contact experienced DUI defense counsel.