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Chemical Test Refusal for DUI

California Vehicle Code 23612 deems all drivers of motor vehicles to have consented to a chemical test, either blood or breath test, if lawfully arrested for an alleged violation of VC 23152VC 23153, or VC 23140.  If the Implied Consent Law is properly invoked and you refuse to take a chemical test, you will likely face an enhanced punishment in your case.  You will need to schedule an Admin Per Se hearing with the DMV within 10 days of your arrest or you will lose your license.

When do I have to submit to a chemical test?

A driver is not required to submit to a chemical test unless they are lawfully arrested under California's Implied Consent Law.  Prior to a lawful arrest, a driver may refuse a chemical test requested by an officer including the preliminary alcohol screening test typically administered by the officer during an officer's initial investigation into a suspected DUI driver.  The initial vehicle stop is not an arrest but a temporary detention in most circumstances.  A lawful arrest for DUI cannot occur until an officer has sufficient evidence that a DUI has occurred.  Any one of these signs indicates you have been arrested: placed in handcuffs, placed in the back of a law enforcement vehicle, and Miranda rights read.  After this point, the implied consent law will likely be invoked requiring you to submit to a chemical test or incur penalties.

What must an officer advise a suspect of?

After the arrest, an officer typically reads an admonishment card carried with him regarding the California's Implied Consent Law.  However, it is not required that an officer read verbatim from the card as long as the following information is communicated to a suspect:

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.

What are the penalties for Refusing a Chemical Test?

The penalty for refusing a chemical test is determined by the amount of prior convictions for DUI in the past 10 years using the date of occurrence.  The following is in addition to the penalties of the underlying crime.

1st Offence

Jail.  Minimum of 48 hours in county jail.
License Suspension.  1 year suspension with no possibility of a restricted license.

2nd Offence

Jail.  Minimum of 96 hours in county jail.
License Suspension.  2 year revocation with no possibility of a restricted license.

3rd Offence

Jail.  Minimum of 10 days in county jail.
License Suspension.  3 year revocation with no possibility of a restricted license.

4th Offence or more

Jail.  Minimum of 18 days in county jail.
License Suspension

.  3 year revocation with no possibility of a restricted license.

What are the defenses to chemical refusal?

The arrest was illegal

The implied consent law does not apply prior to a lawful arrest.  Generally, you may refuse to perform any Field Sobriety Test and Preliminary Alcohol Screening test.  Not all arrests are lawful.  If the officer lacked probable cause to arrest a subject, the arrest was unlawful.  In this situation, a refusal to take a chemical test would result in penalties because the implied consent law would not be invoked.

The officer did not properly advise a suspect 

An officer must provide a suspect with a clear and concise admonishment as to their right to choose between a blood and breath test, and the potential penalties of refusing a chemical test.  A confusing or ambiguous admonishment will result prevent the implied consent law from being invoked. 

If you have been arrested for suspected DUI and refused a chemical test, you are facing significant penalties in your case.  Requesting Admin Per Se hearing with the DMV within 10 days of your arrest will be required to save your license.   An experienced attorney can review the evidence and challenge the officer's findings  The Law Offices of Steven McNicholl has that experience and will get you through your case in the best shape possible.

See also

VC 23152 Driving Under the Influence

VC 23153 Driving Under the Influence with Injury

VC 23136 Underage Driving Under the Influence BAC .01% or more

PC 191.5(a) Gross Vehicular Manslaughter with gross negligence

 

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If you or a loved one has been charged with a crime, call the Law Offices of Steven McNicholl at (951) 405-0990. We have the skill and experience in San Bernardino County to protect your rights and get the best results in your case.

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