The refusal license suspension under Vehicle Code 13353 is the DMV's penalty for refusing or failing to complete a chemical test after a DUI arrest, and it is harsher than the ordinary administrative suspension. I am Joel Brand, and here is how it works and how I fight it.
The text of the law
Vehicle Code 13353(a). If a person refuses the officer's request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer's sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, and that the person had refused to submit to, or did not complete, the test or tests after being requested by the officer, the department shall do one of the following: (1) Suspend the person's privilege to operate a motor vehicle for a period of one year. (2) Revoke the person's privilege to operate a motor vehicle for a period of two years if the refusal occurred within 10 years of [a prior qualifying DUI conviction or administrative suspension]. (3) Revoke the person's privilege to operate a motor vehicle for a period of three years if the refusal occurred within 10 years of [two or more qualifying priors].
What triggers the refusal suspension
California's implied-consent law, Vehicle Code 23612, provides that by driving you have consented to a chemical test of your blood or breath if lawfully arrested for a DUI. Section 13353 is the consequence for refusing. A first refusal brings a one-year suspension, with no restricted-license option for work or program during that year, which is a key difference from an ordinary APS suspension. A refusal within ten years of a prior brings a two-year revocation, and with two or more priors, a three-year revocation. The refusal penalty is deliberately severe to discourage refusing the test.
The 10-day deadline applies here too
As with any DMV suspension, you have only 10 days from the arrest to request a hearing. Miss it and the suspension takes effect automatically. Request it in time and the suspension is stayed pending the administrative hearing. Because the refusal suspension is so much harsher and carries no restricted-license relief, requesting that hearing promptly is even more important than usual. It is the first thing I handle.
What the DMV must prove
The defense to a refusal suspension lies in the specific elements the DMV must establish, and there are several. The department must show that the officer had reasonable cause to believe you were driving under the influence, that you were lawfully arrested, that you were properly admonished of the consequences of refusing, and that you in fact refused or failed to complete the test. Each of these is a real point of attack, and the admonition requirement in particular is frequently where these cases turn.
Whether there was a true refusal is often disputed
A great many "refusals" are not the clear, knowing refusals the law requires. The officer must give a proper, complete admonition warning that refusing will result in a suspension or revocation; if that warning was not given correctly, the refusal finding can fail. Confusion is another recurring theme: a driver who was disoriented, injured, or who genuinely did not understand the request, or who was confused by the right to counsel that does not apply to chemical testing, may not have made a willful refusal. Medical conditions can also prevent a person from completing a breath test despite a genuine effort, which is a failure to complete rather than a refusal. I examine exactly what was said and done, because the line between a refusal and a misunderstanding decides the case.
The lawful-arrest requirement
The refusal penalty only attaches if the underlying stop and arrest were lawful. If the officer lacked reasonable cause for the stop or probable cause for the arrest, the foundation for the refusal suspension collapses. The same challenges that apply to the stop and arrest in the criminal case apply here, and a defect in either reaches the administrative suspension as well.
Why it matters even if you take the test later
The refusal allegation can arise even where some testing occurred, for instance where a driver initially declined, then agreed, or where a breath test was started but not completed. These partial or sequenced situations are fertile ground for argument about whether there was truly a refusal at all. Because the consequences are so severe, no refusal allegation should be conceded without scrutinizing exactly what happened, in what order, and what the driver was told. I review the body-camera and dash-camera footage, the officer's report, and the testing records side by side, because the sequence of events frequently shows something other than a clear refusal.
The refusal allegation in the criminal case
A refusal does not only carry a DMV consequence. In the criminal DUI case, an alleged refusal can be charged as a sentencing enhancement under Vehicle Code 23577, adding mandatory penalties on top of the base DUI. That makes the refusal question doubly important, because the same disputed facts, whether the admonition was proper and whether there was a true, willful refusal, drive both the DMV suspension and the criminal enhancement. I attack the refusal allegation on both fronts at once, since a finding that there was no genuine refusal undercuts the suspension and the enhancement together.
How it fits the larger defense
The refusal suspension is the DMV side of a refusal case, fought through the administrative hearing, and it connects directly to the implied-consent statute and the criminal refusal allegation. See the chemical test refusal page, the DMV administrative hearing, and the ordinary administrative per se suspension, along with my top DUI defenses and the defenses guide.
Accused of refusing a chemical test? Let's talk.
Whether there was a true, properly admonished refusal is exactly what I review, and the 10-day clock is already running. Use the free case analysis on this page, or call me directly at (888) 271-6644. I answer my own phone, 24/7.