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.
It's not uncommon for individuals to believe they've made a strategic move by refusing a DUI test. However, in my experience, such cases rarely lead to a favorable outcome. This often stems from receiving misguided advice.
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 the defendant willfully refused to submit.
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 advise” 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 does not satisfy a defendant's requirement to submit to chemical testing and will not prevent a subsequent refusal enhancement.
The police officer has to make sure the defendant can understand the warning. 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. This is known as the implied consent law, a crucial aspect of California's DUI regulations.
That's the implied consent law, which works in California. If you refuse to cooperate with the police, they will read you all your appropriate rights.
They tell you that you'll lose your driver's license for a year if you don't take the test. They'll 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 consequences of refusing a chemical test when asked by a police officer are severe. However, there are potential defenses that your attorney can use to help you. It's important to act quickly and seek legal advice.
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.
As a DUI refusal, you're facing serious consequences in both criminal courts and with the DMV. It's crucial that you seek legal representation immediately to navigate these challenges effectively.
With over 30 years of experience in handling DUI cases, I've represented thousands of individuals in situations similar to yours. My work as a superior court judge for the District Attorney's office since the early 1990s has given me a deep understanding of cases like yours.
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. 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 by filling out the contact form.
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