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 DUI. The implied consent will have significant ramification in any DUI/DWI case.
Do I have to submit to a chemical test?
You are not required to submit to a chemical test in all circumstances. The implied consent law only applies where a suspect was allegedly driving and lawfully under arrest for suspected DUI. Prior to being placed under arrest, you are free to refuse any chemical test without consequences in most cases.
Once you have been lawfully arrested, the officer will likely read an admonishment advising a suspect of the choice between a blood or breath test if the arrest was based on suspicion of a DUI and refusal to do so will result in a fine, mandatory jail time, and suspension or revocation of driving privileges for 1, 2, or 3 years if convicted of a DUI.
If the officer believes evidence of impairment caused by drugs will be revealed by a blood test, he may require the suspect to also take a blood test. Refusing a chemical test will result in steep penalties with the DMV and increased punishment if convicted in criminal court.
What must an officer advise a suspect of?
An officer typically reads from a card that is carried with him. 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 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, the implied consent law likely played a role. 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.