Many people will come into my office saying that they refused to take the DUI test when the police pulled them over, and they somehow think they can now win the case.
Somebody gave them bad advice and thought they made a good move. The bottom line, I rarely see cases where refusing to take the DUI tests when asked by the police is a good idea.
If you refuse to submit to a DUI breathalyzer test or a blood test after a lawful DUI arrest in California, you will face penalties for a chemical test refusal.
The consequences of a chemical test refusal are increased penalties in addition to the standard California DUI penalties, and there is a mandatory driver’s license suspension regardless of the outcome of your driving under the influence case.
California Vehicle Code 23612 VC refusal enhancement increases the penalties for any DUI conviction. For the enhancement to be imposed, the prosecutor must prove the crime's elements for the underlying DUI charge.
First, the police officer asked them to submit a chemical test to determine their blood alcohol content or whether they consumed drugs (DUID), defined under California Vehicle Code 23152(f).
Next, the officer fully advised the defendant of the requirement to submit to a test and the consequences of not submitting, but still, the defendant willfully refused to submit to a test.
Finally, the police officer lawfully arrested the defendant and had reasonable cause to believe they were driving a motor vehicle while under the influence of alcohol or drugs. Let's review further below.
What Does Fully Advice the Defendant Mean?
To “fully advised” the defendant, a police officer is required to tell them all of the information below:
- They can choose a breath or blood test and might be required to submit to blood testing if they took drugs;
- They have the right to have an attorney present before saying whether they will submit to a test, during the decision on which test to take, and during the administration of the test;
- If they refuse to submit to a test, it may be used against them in court;
- Failing to submit to testing will result in a fine and mandatory imprisonment if they are convicted of DUI;
- Failing to submit to testing will result in an automatic driver's license suspension of one year or revocation of driving privileges for up to three years.
Submitting to the PAS test doesn't satisfy a defendant's requirement to submit to chemical testing and won't prevent a subsequent refusal enhancement.
The police officer has to make sure the defendant can understand the admonition. However, if their behavior prevents comprehension of the admonition, they can still be held responsible for any refusal.
What Are the Penalties?
The VC 23612 refusal enhancement adds the following penalties for a defendant convicted of DUI:
- For a first-time DUI, the refusal enhancement adds two days in jail, a nine-month alcohol program, and a one-year driver's suspension without eligibility for a restricted license.
- For a second DUI, the refusal enhancement adds four days in jail. They would be subjected to a two-year driver's license revocation without eligibility for a restricted license.
- For a DUI, the refusal enhancement adds ten days in jail and a three-year license revocation without eligibility for a restricted license.
What is California's Implied Consent Law?
The reason for all this above is we have what is called the implied consent law, which talks about when you get your driver's license, you've got to agree if the police think you might be driving under the influence of alcohol or something else, to take the test.
Because if you don't agree to that, then they'd rarely be able to catch anybody for a DUI because they wouldn't have to take the test.
By driving in California, you are presumed to have consented to chemical testing for blood alcohol levels (BAC) or drugs if you are lawfully arrested for DUI.
So, that's the implied consent law, which works in California. If you refuse to cooperate with the police, they read you all the appropriate rights you have.
They tell you that you're going to lose your driver's license for a year if you don't take the test, they're going to be able to take your driver's license away for one year, and you won't be able to get it back on a restricted basis until after the year is up.
That's a horrible result in a DUI case, especially if it's a first offense, because if you had just cooperated and taken the test, and even if you were DUI, you would have only lost your license for 30 days. You could have gotten it back on a restricted basis if you had just complied with some rules by the DMV.
What Are the Possible Defenses?
The ramifications are not good if you refuse to take a chemical test when asked to by a police officer. Of course, there are ways around this. Maybe the police don't correctly advise you. Maybe there's something else going on that your attorney can use to help you.
Another ramification of not taking those tests is that the prosecutors, in the criminal case, will file an additional allegation on you that you didn't comply with what you're supposed to regarding your DUI chemical admonishment, which means other potential punishment for you.
So, the bottom line is, if you're a DUI refusal, you're facing bad outcomes in both criminal courts and with the DMV. You'd better get an attorney right away.
I've been doing DUIs for 30 years. I've represented thousands of people just like you. I've worked as a superior court judge for the District Attorney's office, handling cases like yours since the early 1990s.
So, pick up the phone now. Ask for a meeting with Ron Hedding. If you've got a refusal case, that's a big problem.
You want to get an attorney to do everything they can to minimize the damages because you make it easier for the prosecutors to win the case if you refuse to take the test because then all they have to do is show that you can't rebut the presumption that you're DUI.
What I mean by that is, if you could quickly run out and take a test during the timeframe they're claiming that you're DUI, then you could show, look, my blood alcohol is under .08, so I'm rebutting the presumption that I am.
But, of course, people cannot do that because they get arrested, thrown in a police car, and held for hours. They punish you because you didn't cooperate with them, so now they're going to hold you and claim we don't know how bad this guy is because he wouldn't let us give him a test.
So, pick up the phone and ask for a meeting with Ron Hedding. I will do everything possible to help you with your DUI refusal case. The Hedding Law Firm provides a free case review by phone or fill out the contact form.
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