Refusing Blood and Breath Tests in DUI Cases

DUI Refusal Cases

What Happens If You Do Not Take A DUI Test?

Many drivers want to know and are concerned about what will happen if they are accused of refusing to take a breath or blood test after being arrested for a DUI in California. There are serious consequences if it is proven that you refused to take a blood or breath test, also known as a chemical test, once you have been arrested for a DUI.

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 Probation VC 23154 or are Under 21 years old VC 13388: 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 legally arrested for a DUI in Southern California, you have to choose to take a breath or blood test. VC 23612a says that every person who drives a motor vehicle in the state of 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. 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. VC 23612(d)(2). VC 23612 is known as the Implied Consent law or statute.

What is a DUI Refusal?

What constitutes a refusal is not straightforward. The facts of each case will tell the story. However, it is much more than simply not taking the test. The best DUI attorneys investigate your case to determine the cause of the refusal.

You need to get all the evidence that is 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 out a subpoena duces tecum. This type of subpoena requires certain types of evidence to be produced in court or at your DMV 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 is understandable.

There cannot be an informed refusal where the admonition was not given, or when the driver, through no fault of his or her own, is unable to understand the warning. Drivers should not suffer the consequences of a license suspension in these cases, even if they did not take the 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?

Court Cases:

If you are convicted of a first-offense DUI, the court is no longer required to sentence you to jail. In 2005, California Vehicle Code 23538 was changed to eliminate the mandatory 48 hours of jail for a refusal on a first-time DUI. 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. If this is your third DUI with a refusal, the court must sentence you to at least 10 days for the refusal. For a fourth DUI, the court must add at least 18 days of jail for the refusal. These jail sentences for the 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: One-year suspension. The law does not allow you to apply for a restricted license.

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

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

DMV Refusal Cases, Under Age 21:

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

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

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

DMV Refusal Cases, on DUI Probation:

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

Third DUI: Three-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.

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