Over the last twenty-five years, I've got a lot of clients who have come to me with cases of refusal. They often say everybody told me I should refuse all the tests, and that's why I did it. I wasn't 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 people refuse to take the breath test or the blood test when the police officers ask them to do breathbreath test or the blood test when the police officers ask them to do. And they 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. You're going to need information and ammunition to do that, so that makes it very difficult for your DUI defense attorney.
The policy behind this whole concept is that if you don't take one of the tests – a blood test or a breath test – it used to be urine, but they got rid of that, so you 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, everybody would refuse to take the test and then couldn't get anybody for a DUI. They say 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 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 think it. 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.
Essential 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 an actual suspension. Meaning you cannot drive for one year.
You can't get a restricted license – not like you can when you get the first offense, and you only lose your request for a month. Then you can get it back on a limited 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 severe because driving in California – especially Los Angeles, California – is crucial. Suppose you get caught driving because you have a prior DUI and 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 that they must show that they told you that you would lose your license for a year. If they don't have that, they can't get you for a refusal. They might be able to contact 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 precisely 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 tell 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 are 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, more challenging, 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 will 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 to the hospital and then say 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 they often don't have the breath test right there.
They're going to need to take you to a police station with the breath test 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 to help you make an informed decision. We can help you make the right decision in your DUI refusal case.