Breath Test Refusal in a California DUI Case
Over the past twenty-five years of defending DUI cases in Los Angeles, I have seen many clients refuse to take the breath test associated with a DUI and believe that they made the right choice under the circumstances.
Because driving in California is a privilege and not a right, I find myself breaking terrible news daily. Unfortunately, this is typically the wrong move because you make the police and prosecutor's jobs much easier to prove you guilty.
Since it would be near impossible to prove anyone guilty of a DUI if they all just refused to take the test, the legislature has passed stiff sanctions for those who refuse to accept the breath test.
If you do not take the test when a law enforcement officer asks you, it is automatically presumed that you were DUI, and you lose your driver's license for one year.
This is a rebuttal presumption that is very difficult to get around. You and your attorney must prove that you were not driving under the influence, or the jury is instructed to find you guilty. It is no easy task to prove someone is not guilty of a DUI under these circumstances.
Driver's License Suspension
In court, the prosecutors are pretty reasonable when it comes to striking the refusal aspect of the DUI, as long as you do not have any prior criminal record and were not involved in an accident or extreme speeding.
The problem comes with the Department of Motor Vehicles (DMV) because they will not strike the refusal unless your DUI attorney can beat them at the DMV hearing.
This is a massive problem because it will cause you to lose your license for a year with no restrictions. Preparing for the DMV hearing is all-important, and it is nice to know whether you have a chance from the beginning.
Suppose you have a DUI pending in one of the Los Angeles courthouses. In that case, I encourage you to come in for a consultation to investigate all of the avenues available to you in dealing with this all-important matter.
I have a motto that I live by regarding DUI cases, “if you have to do it, do it once, do it right and never do it again!” I have handled thousands of DUI cases over the years and have a pretty good feel for all of the courthouses in LA and know what it takes to get you a result that you can live with.
I take pride in sitting down with my clients, helping to take the stress away associated with their DUI, and gaining a plan to be a successful resolution.
This is where a savvy DUI attorney can do you the best. They can give you a realistic view of what can and can not be accomplished with your case to gain peace of mind and move forward with your life!
Experienced Breath Test Refusal Lawyer
It is never a good idea to not take a breath or blood test if the police ask you to be related to a DUI case. The problem with this strategy is that the law is set up to punish you for this type of action. If people could refuse to take the test, the authorities would never get anyone out of a DUI.
However, all is not lost if you refuse to take the DUI test. We can often get the prosecutors to dismiss the refusal portion of the DUI and proceed with a regular DUI.
To beat the DMV, we will have to show that the police messed up one of the requirements for a refusal DUI. If you have refused to take a breath/blood test after being pulled over, you will need an experienced and skilled attorney to be your advocate.
Implied Consent Law in California
In California, there is an “implied consent” law that drivers in California implicitly consent to submit to a breath/blood test if suspected of drunk driving, and refusal may have consequences. Our lawyers are here to assert defenses on your behalf if you face this legal situation of refusing to take a breath test.
We will examine all the evidence that led up to your arrest. Even though refusing a breathalyzer test may result in driver's license suspension, our goal as your attorney is to keep you from going to jail, keep your driver's license from getting suspended, and bring you the best results we can get.
Although there is no proof of your blood alcohol level at the time of your arrest, your refusal may be used to show guilt, and the penalties can be harsh, resulting in license suspension, jail time, and possibly alcohol abuse programs.
Why is a DUI Refusal So Much More Difficult to Deal with?
DUIs are challenging, but you put yourself behind the eight-ball when you refuse to take the test. The reason is that if everybody refused, nobody would be prosecuted for a DUI. The law has been set up such that if you refuse, you're automatically guilty of the DUI unless you can rebut the resumption, which is very difficult.
An example of rebutting the presumption in a DUI refusal case would be if, right after you got arrested, you could quickly get a breath test or you could quickly get a blood test to show that you were not intoxicated.
Alcohol Wearing Off
Of course, that is not realistic because usually, when you refuse to take the test, the police will arrest you and hold you. They're probably going to hold you for a lengthy period while they let the alcohol wear off that they assume you are intoxicated.
Since you refused to take the test, they can't tell how intoxicated you are, so they will err on the side of keeping you longer. That's one big problem with a refused DUI. You have no defense.
The second big problem is losing your driver's license with no restrictions for at least a year, meaning the following:
- You can't get your license back;
- You can't get it for work;
- You can't get it to go to school;
- You just straight-up lose your license for one year.
This assumes that you're convicted of a refusal or if there's an administrative hearing with the DMV and the DMV finds that you are a refusal. So, refusal DUIs are challenging, but there are also specific rules the police must abide by to get somebody for a refused DUI.
For example, they've got to explain that if you don't take the test, you'll lose your driver's license for a year.
If they don't explain that to you and try to claim that it's a refusal, they will have a problem because they have to put it under penalty of perjury, and the unwillingness to DUI will be undone. Also, how will they get you for a DUI if they didn't take any tests to prove you were DUI?
Police Did Not Offer Blood or Breath Test
Another way to try to fight a refusal DUI is to indicate and be able to prove that the police didn't give you an option of a blood or a breath test. Those are the rules. Many people came into the office saying the police wanted me to take the breath test. I wanted to take the blood test.
They didn't want to go to the hospital. They're too lazy, so they just wrote me down for a refusal. If you can prove that through a bodycam or other witness evidence, you might have a chance to defend your refused DUI case.
Hopefully, this gives you some general information about the refusal DUIs and why it's never a good idea to refuse to take the blood or breath test if you're suspected of a DUI.
This is especially true since there's a complied consent law that says look, if you want to drive on the roads in California, you will have to take a blood or breath test if the police believe you are going intoxicating.
Best Strategy If Charged with a DUI Refusal?
The concept of a DUI refusal seems confusing for many people because, typically, the police have no blood or breath results, and can't figure out how to get them for a DUI.
Because getting the blood or breath result can be difficult, and people can be uncooperative or refuse, what the legislature has done to cover that issue is said if you refuse to take a blood or breath test if the police think you're intoxicated, you automatically lose your license.
A presumption in the law says you're automatically a DUI. The reason they do that is that if they didn't do that, then everybody would just simply refuse the test.
There would be no ramifications to them; therefore, they wouldn't be able to get anybody for a DUI, and the streets would be unsafe, or so the theory goes.
Also, they've set something up where to get your driver's license in California in the first place; it's called the implied consent law. You've got to agree that if the police want to test you, you'll cooperate; otherwise, California says they won't let you drive on their roads.
Now there are specific parameters that the police need to follow to get somebody for a refusal. One big thing that I see that's just a constant issue but hard to prove is that the police are lazy and don't like to give people blood tests. They don't want to go to the hospital and wait.
They'd rather the person just agree to a breath test that makes it easier and quicker for them. So, those people not agreeing to take a breath test often try to jam them into the category of refusing when they didn't refuse.
They would take a blood test. So, that's one issue to look out for. That's one strategy if it can be proven to be utilized. These guys are not enforcing the law regarding DUIs and refusals the right way.
Because they're not giving a choice of the two tests – the blood or the breath test, they want to breath test, so they're cajoling and forcing the person to take a breath test. So that's one issue to look out for. Another issue I see getting mixed up with the refusal is that the police will ask somebody to do the field sobriety test.
Technically, you don't have to do the field sobriety test, but you must be careful because the police will try to cajole that into a refusal. So, you have to take a blood or breath test if they ask, and you have to cooperate with them.
But if they want you to walk the line, touch your nose, and all that, you don't have to do that, but if you're not intoxicated, you might as well do it because that will be evidence that you're not drunk. After all, that's what those tests are designed to check for.
The last thing that I would say regarding strategies for DUIs and refusals is that the police have to tell you in no uncertain terms that if you don't take one of the two tests – the blood test or the breath test – you're going to lose your driver's license for a year and then they have to record what you say.
If you say something nasty to them, they write that down and then they have to swear to it under penalty of perjury. So, if they don't do those things, if they don't let you know you're going to lose your license for a year, and they don't swear under penalty of perjury, then they can't get you for a refusal either. So, if you need the best and are charged with a DUI refusal, pick up the phone now. Ask for a meeting with Ron Hedding.