Is it mandatory to Submit to a field Breathalyzer on DUI probation?
If you had one DUI, and pled guilty or no contest to that DUI, then you were likely placed on DUI probation.
Probation of at least three years is mandatory under the law in California for DUI convictions, and judges must place you on probation, the only other option being to find you in violation of probation immediately and then imposing punishment for the probation violation and ending or terminating probation.
Under the law, you most often see search and seizure conditions for DUI. The language might also state that you must “submit to a chemical test if arrested on suspicion of DUI.” It’s a mandatory condition for DUI probationers under California vehicle code section VC 23600(b)(3).
The language in a plea bargain or probation form might also state that you must “submit to random chemical tests”, which could include a preliminary alcohol screening (PAS) test before your arrest. The consequences for not doing so could include being charged with an additional violation of probation, which is a Penal Code section 1203.2 violation, or being charged with a separate violation of Vehicle Code 23154(a), which makes it a crime to not submit to a chemical test upon request while on probation.
The statutory term, which states to “submit [only] if lawfully arrested [i.e., no refusals], is also listed as one of the drug term conditions on the plea forms (or Tahl forms) used in many counties.
In many says, it invites purely arbitrary test demands. The only one that attorneys should be advising their clients matches the law is the statutory term that if arrested will submit, and most attorneys, including our Los Angeles DUI Lawyers and our Orange County DUI Lawyers, advise clients to NOT agree or consent with any other language.
Don’t be part of the “everybody” that accepts terms beyond those mandated by statute. With the DMV, you can make that argument on the pre-arrest PAS test but failure to submit to it will result in a two to three year hard suspension. As for the post arrest testing, there’s a Constitutional Fourth Amendment waiver (which is the portion of the constitution that protects against unlawful searches and seizures) based on the probation term condition.
If the condition is imposed on a broader scope then that is the probation condition, though as it relates to the Fourth Amendment, one can argue that the PAS is not a chemical test. However, if submission to testing is a condition of probation then that makes the need for a warrant unnecessary, which is what law enforcement prefers.