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If you refuse to take a blood or breath test in Los Angeles related to a DUI pull over, when asked to do so by law enforcement, you will lose your drivers license for one year (with no restricted license) and you will be charged with an extra enhancement in criminal court associated with your DUI case. This extra enhancement could lead to jail time and extra penalties in your criminal case. California takes DUI cases very seriously and there is a lot of political pressure on the police, prosecutors and judges to make sure people are punished to the full extent of the law when they are perceived to be jeopardizing other innocent citizens lives on Los Angeles streets.
In my opinion, the reason that the legislature has been so harsh when it comes to a DUI refusal is because without these policies in place, then everyone who is pulled over for a DUI would simply refuse to take the test and could therefore not be prosecuted for a DUI. The way they have justified being able to do this is because they have indicated that driving a car in California is a privilege and not a right. Hence, when you get your drivers license you are specifically informed that if law enforcement asks you to take a blood or alcohol test (because they believe you are sufficiently impaired as to be unsafe) you must cooperate with them or face severe consequences.
What do the prosecutors need to prove in order for there to be a valid DUI refusal in Los Angeles? One of the major things that the police must do procedurally for purposes of a DUI refusal is to give you a choice between the blood or breath test. I find many clients telling me that they were not given the blood option. This seems to be because it is more of a hassle for the police to draw someone’s blood than it is to have them blow into a breath machine. The problem with successfully utilizing this defense is that it typically ends up being the police officer’s word against the person who was arrested.
Another requirement that is sometimes overlooked or ignored by the police is to properly advise the person they arrested that if they do not take one of the tests, then they will lose their driver’s license for one year. Once the police advise you of this, they will usually indicated in the report exactly what your response was. The point here is to make sure that people know the ramifications of their actions in not taking the test. Bottom line, it is almost always best to take the test, so you have a fighting chance in your case and you can avoid some of the harsh penalties both at the criminal court level and with the DMV.
Other issues that I have seen pop up over the course of the past twenty five years of defending these cases is when a person chooses to do one of the tests and then does not complete that test. For example, the police drive all the way to the hospital because the person choose blood and then the person changes their mind and says they are afraid of needles. Many times the police put this down as a refusal DUI. Another common issue crops up when the person chooses the breath test and then is not blowing hard enough for the machine to register. Sometimes this is because the person is doing it in order to avoid what they believe will be a bad result and there are certainly occasions when there are issues with the breath machine as well. These subjective issues are at least ripe to argue with the prosecutor that the police did not follow proper procedures.
It has been my experience from talking to many clients over twenty five years of practicing DUI defense that when the police perceive that you are messing around with the tests, they lose patience with you (if they had any to begin with) and lock you up and put you down for a refusal. Remember, they have the last say in their police report and can put in there what they want.
In my opinion, in order to combat this rush to judgment, you must hire a local attorney who has been down this road before and had success. Someone who is respected by judges and prosecutors and can get your story across in an effective manner. I make it a point to get clients in my office and make sure that when they leave we have a plan in place of exactly how we are going to best defend them and what they can do to assist. With clarity comes peace of mind. It is a goal to handled your matter professional and discreetly with the least amount of pain an embarrassment possible.