Suppose you refuse to take a blood or breath test in Los Angeles related to a DUI pullover when asked to do so by law enforcement. In that case, you will lose your driver's 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 additional penalties in your criminal case. California takes DUI cases very seriously. 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 legislature has been so harsh when it comes to a DUI refusal because without these policies in place, everyone pulled over for a DUI would refuse to take the test and could therefore not be prosecuted for a DUI.
They have justified doing this because they have indicated that driving a car in California is a privilege and not a right. Hence, when you get your driver's license, you are explicitly informed that if law enforcement asks you to take a blood or alcohol test (because they believe you are sufficiently impaired to be unsafe), you must cooperate with them or face severe consequences.
What do the prosecutors need to prove for a valid DUI refusal in Los Angeles? One of the essential things that the police must do procedurally for a DUI refusal is to give you a choice between the blood or breath test. Many clients tell 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 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 arrested person.
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, they will lose their driver's license for one year. Once the police advise you of this, they will usually indicate 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.
Not Completing DUI Breath Test
Other issues that I have seen pop up over the past twenty-five years of defending these cases are when a person chooses to do one of the tests and then does not complete that test. For example, the police drive to the hospital because the person picks 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 arises 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 to avoid what they believe will be a bad result, and there are certainly occasions when there are issues with the breath machine. These personal issues are ripe for arguing 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 what they want there.
In my opinion, 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 will best defend them and what they can do to assist. With clarity comes peace of mind. It is a goal to handle your matter professionally and discreetly with the least amount of pain and embarrassment possible.