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Refusing Testing When Pulled Over For a DUI

Posted by Richard Wagner | Dec 11, 2022

What Happens If You Do Not Take A DUI Test?

You may be concerned about what will happen if you refuse to take a blood alcohol test after being arrested for a DUI in California.

During this long 1 1/2 year process of dealing with multiple court hearings for my second DUI, Richard Wagner was extremely valuable to have on my team. We were able to achieve the best outcome possible and he was always available to offer his professional legal council and was very generous with his time. 10 out of 10 would recommend Mr. Wagner to anyone dealing with legal issues. He was a Lifesaver! D.D. Huntington Beach. Read What Others Have To Say

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There are serious consequences if it is proven that you refused a blood or breathalyzer test, also known as a chemical test, once you have been arrested for drunk driving.

However, the definition of “refusal” is not clear-cut. It is important that you know what you are dealing with when accused of a refusal in court and at the DMV.

In the following circumstances, you may not refuse:

  1. If you are on DUI Probation1 or are Under 21 years old2: You have to blow into the preliminary alcohol screening device. Both VC 23154 and VC 13388 require that the PAS testing be done incidental to a lawful detention by a police officer who had reasonable cause to believe you were driving under the influence. All other drivers may refuse the PAS test.
  2. After a legal DUI arrest: If you have been lawfully arrested for a DUI in California, you have to choose to take a breath or blood test. VC 23612a says that every person who drives a motor vehicle in California is deemed to have consented to chemical testing to determine the alcohol content of their blood or breath if lawfully arrested for driving under the influence of alcohol.3 A driver who is arrested for driving under the influence of alcohol has a choice of blood or breath tests. If neither a blood nor a breath test is available, the driver may choose a urine test.4 VC 23612 is known as the Implied Consent Law or statute.

Were You Warned About The Consequences of Refusing? 

The law requires police to warn you that your failure to take a breath or urine test will result in a fine and mandatory imprisonment if you are convicted of a DUI.5

The law also requires the police to warn you that your failure to take a blood or breath test will result in:

  • 1-year DMV suspension,6
  • 2-year DMV revocation if the refusal occurs within 10 years of a wet reckless or DUI conviction or a DMV suspension or revocation,7
  • 3- year DMV revocation if the refusal occurs within 10 years of 2 or more wet reckless or DUI convictions or DMV suspensions or revocations.8

California law also requires the police to warn you that if you refuse to submit to a test or tests, the refusal may be used against you in court.9

What is a DUI Refusal?

What Happens If I Refuse the Breathalyzer

What constitutes a refusal is not straightforward. The facts of each case tell the story. However, it is much more than the police officer marking down in the police report "refuse a breathalyzer test."

The best DUI lawyer will investigate your case to determine the cause of the refusal.

You need to get all the evidence related to your DUI case. In refusal cases, it is critical to get the audio and video recordings of the DUI investigation.

This can be done by sending a subpoena to the police station. This type of subpoena requires the police and prosecution to turn over certain types of evidence in court or at your DMV driver's license suspension hearing. 

Can I Beat A DUI Refusal?

The evidence must show that the police told you that refusing to take the breathalyzer or blood test would have consequences. The consequences include the suspension or revocation of your driving privilege. The officer is under a legal obligation to give the required warning in a way that you understand.

For example, in the case of Thompson v. DMV (1980) 107 Cal.App.3d 354, Mr. Thompson got arrested for drunk driving and lost his DMV refusal hearing. 

At the DMV Hearing, his DUI attorney tried to explain to the DMV Hearing Officer that Mr. Thompson did not understand the police officer's warning about the consequences of refusing. 

Two things caused Mr. Thompson's inability to understand the warning.

(1) While the police officer was giving the admonishment to Mr. Thompson, loud radio transmissions from the police radio could be heard on the audio recording, and

(2) The audio recording also revealed that Officer Clark told Mr. Thompson, “If you refuse to submit to a test or fail to complete a test your (inaudible) suspended for a period of six months.” 

Officer Clark then asked, “Do you understand what I just read you?”

“Mr. Thompson: (answers?)

“Off. Clark: Will you take a blood test?

“Mr. Thompson: No.

“Off. Clark: Will you take a breath test?

“Mr. Thompson: (inaudible)

After he lost his DMV Hearing, Mr. Thompson challenged the DMV's decision in the superior court. After he won and the court ordered the DMV to return his license, the DMV appealed. 

The DMV claimed (1) the Officer gave the proper warnings and (2) because Mr. Thompson failed to communicate that he didn't understand the warning he is not entitled to any relief. In other words, he refused as a matter of law. 

The Court of Appeal disagreed with the DMV and ordered the DMV to return Mr. Thompson's license.  

First, the Court of Appeal did not put that much emphasis on the radio transmissions because it was not clear whether they “only interfered with the tape recording or whether they were actually loud enough to interfere with [Mr. Thompson's] hearing of the admonishment.” Page 360.

It boiled down to whether Officer Clark effectively communicated the admonishment to Mr. Thompson. “The court accepted [Mr. Thompson's] version because the tape corroborated his testimony that the warning was not effectively communicated to him.”

Mr. Thompson “testified that the way he actually heard the advisement was that he was “subject to losing [his] license for six months for not taking the chemical test. He also testified he did not understand when the advisement was given that if he refused the test, his license would “automatically” be suspended.”

“He said he thought suspension would only result if he were convicted of driving under the influence. Thus, there was evidence that Mr. Thompson believed (before and after the warning) there was only a possibility of a license suspension.”

The Court of Appeal in the Thompson case ruled that “an advisement is insufficient if it only indicates a possibility of suspension in the event of a refusal to undergo the tests. A sufficient advisement must convey to the driver the “strong likelihood” that the adverse result would follow upon refusal. Giomi v. Department of Motor Vehicles (1971) 15 Cal. App.3d 905, 906-907.

The Court of Appeal in Thompson further ruled, “As noted in the Giomi case: “The arresting officer advised respondent only that his driver's license could be suspended if he failed to take one of the tests. But the code section requires warning that the license will be, or would be suspended in the event of refusal.” 

As far as the DMV's argument that Mr. Thompson was required to “take steps to communicate his noncomprehension to the officer” the Court of Appeal said, “We find no authority which directly supports the department's position on this issue.” Page 361.

The Officer Confused Me About My Rights

VC 23612(a)(4) says the officer shall also advise you that you do not have the right to have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the administration of the test chosen.

Did the officer advise you that you had a right to an attorney as part of the Miranda warnings, but then said that you do not have a right to an attorney when warning you about refusing the chemical test?

If you were confused over your right to counsel, the officer is obligated – before a refusal may be found – to clarify that you do not have the right to an attorney when deciding to take a bac test. 

Can The Police Force Me to Take a Blood or Breath Test?

Keep in mind that if you refuse, the officer will probably get a search warrant and get a sample of your blood. In very rare cases, the police may take your blood without a warrant. The U.S. Supreme Court upheld a warrantless, nonconsensual blood draw in a DUI case when, due to an emergency, the officer claimed they did not have time to get a warrant before the alcohol in the defendant's blood dissipated. Schmerber v California (1966) 384 US 757, 86 S Ct 1826. Because of technological advancement, this is unlikely today. Cops now have fax machines, email, and cell phones to get warrants.

Furthermore, the United States Supreme Court has since ruled that although the natural metabolism of alcohol may support the finding of exigency as an exception to the warrant requirement, it does not do so categorically. This means that to justify a nonconsensual blood draw without a warrant, the prosecution must prove each case on a case-by-case basis under the totality of the circumstances. Missouri v McNeely (2013) 569 US 141.

In cases where you are accused of refusing and they get your blood, the prosecutor may then have evidence of your blood-alcohol concentration and/or drugs in your blood. They will then file a sentence enhancement against you, accusing you of refusing to take the chemical test under California Vehicle Code 23577.

The police can require or coerce you to take a breath test, and a police officer does not need a warrant like they usually do with a blood test. Birchfield v North Dakota (2016) 579 US 438, 460.

What Are The Penalties For Refusing?

Court Cases:

If you are convicted of a first-offense DUI, the court is no longer required to sentence you to jail time. In 2005, California Vehicle Code 23538 was changed to eliminate the mandatory 48 hours of jail for a refusal on a first-time DUI.10 This is an important area where attorneys still make crucial mistakes because they are not familiar with DUI sentencing law.

However, if this is your second DUI, then the court must impose at least 96 hours of jail time.11 If this is your third DUI with a refusal, the court must sentence you to at least 10 days for the refusal.12 For a fourth DUI, the court must add at least 18 days of jail for the refusal.13 These jail sentences for refusal are in addition to the jail sentence for DUI.

The prosecutor will use what is called the “consciousness of guilt” jury instruction to try to persuade the jury to convict you of DUI. However, there are other reasons why people refuse to take the chemical test other than because they know they are guilty.

DMV Refusal Cases, Age 21 and Older:

First DUI: 1-year suspension. The law does not allow you to apply for a restricted license.

Second DUI: 2-year revocation. The law does not allow you to apply for a restricted license.

Third DUI: 3-Year revocation. The law does not allow you to apply for a restricted license.

DMV Refusal Cases, Under Age 21:

First DUI: 1-year suspension. The law does not allow you to apply for a restricted license. 

Second DUI: 2-year revocation. The law does not allow you to apply for a restricted license.

Third DUI: 3-Year revocation. The law does not allow you to apply for a restricted license.

DMV Refusal Cases, on DUI Probation:

Second DUI: 2-year revocation. The law does not allow you to apply for a restricted license. 

Third DUI: 3-year revocation. The law does not allow you to apply for a restricted license.

If you have been arrested or charged with a DUI offense and accused of refusal in Southern California, call Richard Wagner at (714) 721-4423. Mr. Wagner understands the serious nature of this offense, how best to defend you, and how to handle your case.

LEGAL AUTHORITIES

1 California Vehicle Code Section 23154(c)(1): "A person who is on probation for a violation of Section 23152 or 23153 who drives a motor vehicle is deemed to have given his or her consent to a preliminary alcohol screening test or other chemical test for the purpose of determining the presence of alcohol in the person, if lawfully detained for an alleged violation of subdivision (a).

2 California Vehicle Code Section 13388(a): "If a peace officer lawfully detains a person under 21 years of age who is driving a motor vehicle, and the officer has reasonable cause to believe that the person is in violation of Section 23136, the officer shall request that the person take a preliminary alcohol screening test to determine the presence of alcohol in the person, if a preliminary alcohol screening test device is immediately available. If a preliminary alcohol screening test device is not immediately available, the officer may request the person to submit to chemical testing of his or her blood, breath, or urine, conducted pursuant to Section 23612."

3 California Vehicle Code Section 23612(a)(1)(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."

4 California Vehicle Code Section 23612(a)(1)(A): "If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies. California Vehicle Code Section 23612(d)(2) says, "If both the blood and breath tests are 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."

5 California Vehicle Code Section 23612(a)(1)(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."

6 California Vehicle Code Section 23612(a)(1)(D): "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 ... the administrative suspension by the department of the person's privilege to operate a motor vehicle for a period of one year..."

7 California Vehicle Code Section 23612(a)(1)(D): "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 ... 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..."

8 California Vehicle Code Section 23612(a)(1)(D): "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 ... 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." 

9 California Vehicle Code Section 23612(a)(4): "The officer shall also advise the person 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."

10 California Vehicle Code Section 23538(a)(1): "If the court grants probation to a person punished under Section 23536, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as a condition of probation that the person pay a fine of at least three hundred ninety dollars ($390), but not more than one thousand dollars ($1,000). The court may also impose, as a condition of probation, that the person be confined in a county jail for at least 48 hours..."

11 California Vehicle Code Section 23538(a)(3): "If the person is convicted of a second violation of Section 23152, punishable under Section 23540, or a second violation of Section 23153, punishable under Section 23560, the punishment shall be enhanced by an imprisonment of 96 hours in the county jail..."

12 California Vehicle Code Section 23538(a)(4): "If the person is convicted of a third violation of Section 23152, punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 10 days in the county jail..."

13 California Vehicle Code Section 23538(a)(5): "If the person is convicted of a fourth or subsequent violation of Section 23152, punishable under Section 23550 or 23550.5, the punishment shall be enhanced by imprisonment of 18 days in the county jail..."

About the Author

Richard Wagner

Attorney Profile Defense Lawyer Richard Wagner upholds and defends freedoms and liberties enshrined in our United States and California Constitutions.  “Richard was able to achieve an even better outcome for my case than what we initially thought was possible. I couldn't be more grateful to h...

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