Over the course of the last twenty-five years, I've got a lot of clients who have come to me with cases of refusal. A lot of times they're saying, everybody told me I should just refuse all the tests and that's why I did it. I wasn't really drinking that much and I didn't think the police had any reason to pull me over so I didn't take any of their tests.
There's a whole litany of different reasons why people refuse to take the breath test or the blood test when the police officers ask them to do. And they really think that they are within their rights when they do that and a lot of times people think it's a good idea to do that. I'm here to tell you that it's not a good idea to do that, and you put yourself in a much worse position than if you had just cooperated with the police.
If you're coming to this website now and you're seeing this, you're probably saying that information is too late, and you're right, but you have to understand that information so you can help to resolve your case with your DUI defense attorney.
California's Implied Consent Law
When it comes to these refusal DUI cases, you make it easier for the prosecutors because once you refuse to take that test there's a presumption that you are DUI, and then you have to rebut that presumption if you don't want to take a DUI conviction on your record. Obviously, you're going to need information and ammunition to be able to do that, so that makes it very difficult on your DUI defense attorney.
The policy behind this whole concept that if you don't take one of the tests – a blood test or a breath test – it used to be urine, but they go rid of that, so you just have to take a blood or breath test.
The policy behind it is that if we didn't have that rule in society, in California DUI law, then everybody would just refuse to take the test and then they couldn't get anybody for a DUI. Really, what they say is driving in California is a privilege and not a right. It's not like a right to bear arms.
When you take your driving test, even though a lot of people don't realize or remember this, you're basically told that – it's called the implied consent law – if the police believe that you're drinking and driving – and of course that's a subjective thing on their part – but if they believe it and they ask you to take a blood or breath test, you have to cooperate with them. If you don't, you're going to be arrested and you're going to be prosecuted and you're just going to make it easier on the government to prove you guilty of a DUI.
Key Requirement To Get Somebody For A DUI Refusal
One big thing is they have to tell you that if you do not take one of the tests – a blood test or a breath test – then you will lose your California driver's license for one year, and that's a real suspension. Meaning, you cannot drive for one year.
You can't get a restricted license – not like you can when you get a first offense and you only lose your license for a month and then you can get it back on a restricted basis for six months as long as you put an ignition interlock device in your car or get in a first-offender alcohol program and cooperate with the DMV.
So, these refusal cases are very serious, because driving in California – especially Los Angeles, California – is crucial, and if you get caught driving because you have a prior DUI and you have a suspended license, it's mandatory jail time once they get you into court and arrest you. Now you have to get a lawyer again.
The bottom line when it comes to these refusal cases is they must show that they told you that you were going to lose your license for a year. If they don't have that then they can't get you for a refusal. The might be able to get you for a DUI depending on the circumstances, but they won't be able to get you for a refusal.
That's why when I get the police reports in DUI cases, especially refusal DUI cases, I'm looking to see if they asked the client, we need you to take the test – are you going to take the test, or not?
Then they are supposed to write down exactly what you say and then they sign that under penalty of perjury and they have to read, and indicate in their police report, that they warned you that if you don't take one of the two tests then you're going to lose your driver's license for one year.
Breath Test Won't Register Results
Another thing that can be equated as a refusal is if they say, do you want to take the blood or breath test, and you say you want to say the breath test and you start trying to blow into the tube and it won't register.
It won't register either because you're not blowing hard enough – there's ways to trick that too – if you don't blow hard enough, you're just pretending like you're blowing – that's why the police say, blow harder, harder, harder.
If you don't blow in that thing hard enough and they can't register a result, then they're going to make you take the blood test. So, I get refusals that way, where people are trying to blow and they say, well it's not my fault the machine won't work. I'm done.
That's a refusal. If the breath test is not working for whatever reason, then you need to do the blood test. If you don't do it they're going to get you for a refusal.
Changing Your Mind on Taking Blood Test
Another thing I see is the say, do you want blood or do you want breath? The person says, I want blood. They say okay and take them all the way over to the hospital. They get them in there and they say, I changed my mind. You see, playing games like that is another way they can try to get you for a refusal.
Making them take you all the way to the hospital and then saying you don't want it, that's a borderline case depending on the circumstances. Yes, they are supposed to make you take the breath test at that point, but a lot of times they don't have the breath test right there.
They're going to need to take you all the way in to a police station that actually has the breath test that they use in court when people fight DUI cases.
So, if you have a refusal case and you think that there's some suspect stuff going on related to your DUI refusal, get in front of an attorney. Tell him the truth. Give him all the accurate information so that we can help you make an informed decision. We can help you make the right decision in your DUI refusal case.