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DUI Refusal

What Happens if I Refuse a DUI Chemical Test?

California is an “Implied Consent” state, meaning when you were issued a license, you agreed to provide a chemical sample of your blood or breath if lawfully arrested.  Failure to attempt and complete a valid chemical test (Blood, breath, or sometimes, urine) results in mandatory custody and loss of driving privileges for at least a year, with no restricted options available.

What is the law on DUI Refusals?

California Vehicle Code Section 23612:

(A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.

(B) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood test is unavailable, the person shall be deemed to have given his or her consent to chemical testing of his or her urine and shall submit to a urine test.

(C) The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153.

(D) The person shall be told that his or her failure to submit to, or the failure to complete, the required breath or urine testing will result in a fine and mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153. The person shall also be told that his or her failure to submit to, or the failure to complete, the required breath, blood, or urine tests will result in (i) the administrative suspension by the department of the person's privilege to operate a motor vehicle for a period of one year, (ii) the administrative revocation by the department of the person's privilege to operate a motor vehicle for a period of two years if the refusal occurs within 10 years of a separate violation of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153 of this code, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code that resulted in a conviction, or if the person's privilege to operate a motor vehicle has been suspended or revoked pursuant to Section 13353, 13353.1, or 13353.2 for an offense that occurred on a separate occasion, or (iii) the administrative revocation by the department of the person's privilege to operate a motor vehicle for a period of three years if the refusal occurs within 10 years of two or more separate violations of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153 of this code, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, or any combination thereof, that resulted in convictions, or if the person's privilege to operate a motor vehicle has been suspended or revoked two or more times pursuant to Section 13353, 13353.1, or 13353.2 for offenses that occurred on separate occasions, or if there is any combination of those convictions, administrative suspensions, or revocations.

(2)

(A) If the person is lawfully arrested for driving under the influence of an alcoholic beverage, the person has the choice of whether the test shall be of his or her blood or breath and the officer shall advise the person that he or she has that choice. If the person arrested either is incapable, or states that he or she is incapable, of completing the chosen test, the person shall submit to the remaining test. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.

(B) If the person is lawfully arrested for driving under the influence of any drug or the combined influence of an alcoholic beverage and any drug, the person has the choice of whether the test shall be of his or her blood or breath, and the officer shall advise the person that he or she has that choice.

(C) A person who chooses to submit to a breath test may also be requested to submit to a blood test if the officer has reasonable cause to believe that the person was driving under the influence of a drug or the combined influence of an alcoholic beverage and a drug and if the officer has reasonable cause to believe that a blood test will reveal evidence of the person being under the influence. The officer shall state in his or her report the facts upon which those beliefs are based. The officer shall advise the person that he or she is required to submit to an additional test. The person shall submit to and complete a blood test. If the person arrested is incapable of completing the blood test, the person shall submit to and complete a urine test.

(3) If the person is lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153, and, because of the need for medical treatment, the person is first transported to a medical facility where it is not feasible to administer a particular test of, or to obtain a particular sample of, the person's blood or breath, the person has the choice of those tests, including a urine test, that are available at the facility to which that person has been transported. In that case, the officer shall advise the person of those tests that are available at the medical facility and that the person's choice is limited to those tests that are available.

(4) The officer shall also advise the person that he or she does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during administration of the test or tests chosen, and that, in the event of refusal to submit to a test or tests, the refusal may be used against him or her in a court of law.

That looks pretty confusing, what does it really mean?

Basically, if a cop lawfully detains and arrests you for a DUI, the law requires you to provide a chemical test.  If you say you do not want to take a blood or breath test, the law requires the cop to read the refusal advisal (mostly containing the confusing language cited above) telling you the consequences of failing to choose and complete a chemical test.  They will then ask:

Will you take a breath test?  Yes or No?  Will you take a Blood test?  Yes or No?

If you respond NO to both those questions, the cop will treat you as a refusal, and if proven, this will result in mandatory jail time and at least a year of a “hard” suspension, with no restrictions available.

Also note that if you refuse to take a chemical test, the officer can still force a blood draw, even against your will, get a BAC sample, and you will still face the refusal penalties.  Further, if you refuse to take a test, and they read the admonishment (warning) and you refuse again, but later agree and provide a test, you can still be determined to have refused.

Can they actually Hold Me Down and Take my blood?

Unfortunately, yes, they have been doing forced blood draws for decades, and for the most part, courts have upheld this action.

Don't they Need a Warrant?

Actually, this is a good question.  Historically, the courts have found the implied consent law sufficient to justify several cops tackling you, holding your down, and stabbing you with a needle to draw a blood sample.

For purposes of this discussion, we will presume the arrest was legal, eg that the cop had reasonable suspicion to detain, and probable cause to arrest for DUI (Never presume either of these are true without experienced legal counsel's review).

Since a search implicates federal protections, specifically the Fourth Amendment, the US Supreme Court has recently reviewed whether Blood and Breath tests, taken incident to a DUI arrest, are legal.  Under the latest (and controversial) case of  Birchfield v. North Dakota (2016) 136 S.Ct. 2160, the court held that a Breath test is not an unreasonable search (incident to lawful arrest), but that a Blood test requires a warrant, due to the increased personal invasion of a blood draw. Ironically, a cop cannot compel a breath test, but they can still punish you with mandatory jail and a suspension for failing to complete a breath test, with or without a warrant.

The functional result of the Birchfield opinion is that, once a suspect has refused to provide a chemical sample, the arresting officer must obtain a warrant prior to forcing a blood draw.  This is usually done telephonically as the timing of a blood sample is critical.

If you are Charged with a Refusal, You need a Good, Experienced Lawyer

Mandatory jail time and a minimum of a year (or more, if priors) are severe consequences, if you have been charged with a DUI refusal, you need a good, aggressive attorney on your side.  Call today for a free consultation.  760 643 4025

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