DUI Lawyer | Joel Brand, Esq.

Post-Arrest Blood or Breath Test Refusal

Refusing a blood or breath test after being arrested for DUI in California can have significant legal consequences. Understanding these implications is crucial for anyone facing a DUI charge. This article will delve into the legal framework surrounding test refusals, the immediate and long-term consequences, and possible defense strategies.

Legal Framework

Under California’s “implied consent” law, any person who drives a motor vehicle is deemed to have given their consent to chemical testing of their blood or breath if lawfully arrested for driving under the influence of alcohol or drugs (California Vehicle Code § 23612). This means that refusal to submit to such testing can lead to automatic penalties, separate from those related to the DUI charge itself.

Immediate Consequences of Refusal

  1. License Suspension: Upon refusal to take a post-arrest chemical test, the Department of Motor Vehicles (DMV) will automatically suspend your driver’s license. The suspension period for a first-time refusal is one year, two years for a second offense, and three years for a third or subsequent offense within a ten-year period (California Vehicle Code § 13353).
  2. Temporary License: After your refusal, you will be issued a temporary license that is valid for 30 days. You must request a DMV hearing within ten days to contest the suspension.
  3. No Restricted License: Unlike some DUI suspensions, there is no provision for a restricted license that allows you to drive to work or school during the suspension period resulting from a refusal.

Long-Term Consequences

  1. Increased Penalties: If you refuse a chemical test, the court may impose harsher penalties upon conviction of DUI. This can include additional jail time, increased fines, and longer DUI education programs. The refusal can be considered an aggravating factor, leading to a more severe sentence.
  2. Evidence of Consciousness of Guilt: The prosecution can use your refusal as evidence against you, arguing that you refused the test because you knew you were intoxicated. This can be a powerful point for the prosecution to make during the trial.

Defense Strategies

  1. Challenge the Lawfulness of the Arrest: If the arresting officer did not have reasonable cause to stop you or probable cause to arrest you for DUI, any evidence obtained after the arrest, including the refusal, may be inadmissible in court.
  2. Improper Advisement: The officer is required to inform you of the consequences of refusing to take a chemical test. If the officer failed to provide this advisement or did so incorrectly, it could be a basis to challenge the refusal penalty.
  3. Medical Conditions: Certain medical conditions or physical limitations might prevent you from being able to take a breath or blood test. For instance, respiratory issues might hinder your ability to provide a breath sample, or certain medications might affect the accuracy of the results.
  4. Unclear Refusal: Sometimes, what appears to be a refusal might be a misunderstanding or confusion. If you did not explicitly refuse the test but instead were confused or misunderstood the instructions, this can be argued in your defense.

Importance of Legal Representation

Given the severe consequences of a test refusal, having an experienced DUI attorney is crucial. An attorney can help you navigate both the DMV hearing and the criminal court process. They can challenge the lawfulness of your arrest, the manner in which the test was requested, and the advisements given by the officer.

DMV Hearing

Requesting a DMV hearing is vital. This hearing is separate from the criminal case and specifically addresses the license suspension. It must be requested within ten days of the arrest. At this hearing, your attorney can argue against the suspension by challenging the procedural aspects of the arrest and refusal.

Court Process

In court, your attorney will focus on both the DUI charge and the refusal allegation. They can argue that the refusal was not a willful defiance but rather a result of confusion, fear, or a misunderstanding. Additionally, they can negotiate for reduced penalties or alternative sentencing options such as alcohol education programs or community service.

Conclusion

Refusing a post-arrest blood or breath test in California has serious implications, including automatic license suspension, increased penalties, and potential difficulties in defending against the DUI charge. Understanding your rights and the potential defenses available is essential. Consulting with an experienced DUI attorney can provide you with the best chance of mitigating these consequences and navigating the complexities of the DUI process.

Citations

  1. California Vehicle Code § 23612 – Implied Consent Law.
  2. California Vehicle Code § 13353 – License Suspension for Refusal.
  3. California Department of Motor Vehicles, Administrative Per Se (APS) Hearing Procedures.
  4. People v. Superior Court (Hawkins), 6 Cal. App. 4th 317 (1992) – Use of Refusal as Consciousness of Guilt.
  5. California DUI Lawyers Association, DUI Defense Strategies.