Orange County DUI Lawyer Blog

Under California law, anyone lawfully arrested for driving under the influence is required to take a chemical test of his or her blood, breath or urine. This is referred to as the "Implied Consent" law. Refusing to submit to a chemical test has serious consequences with both the DMV and the Courts. As an Orange County DUI Defense Attorney, I have seen many situations where the implied consent law is misunderstood, misrepresented or misinterpreted. While anyone lawfully arrested for DUI is required to submit to a chemical test, not all arrests are made "lawfully".

When a police officer pulls someone over and suspects that the driver is intoxicated or under the influence, the officer may then administer field sobriety tests. What most people don't know is that the roadside, hand-held breathalyzer, the Preliminary Alcohol Screening (PAS) test is considered a field sobriety test and is used to assist the officer in deciding whether or not to arrest the driver for DUI. It is not required that anyone submit to this roadside PAS tests and therefore may be refused without consequences. If however, the officer determines that the driver was driving while intoxicated, and arrests the driver, the driver is then required under the Implied Consent Law to submit to a chemical test of their blood or breath. Urine tests are typically only given when there is reason to believe that the driver is under the influence of drugs and alcohol. If, after arrested, the driver refuses to submit to a chemical test, this is a refusal and is subject to strict consequences with both the DMV and the Courts.

So, what constitutes a "refusal"? There are several situations where this can be confusing. For instance, if you agree to take the roadside, hand-held PAS test, are arrested and then refuse to take the chemical test at the police station, this is considered a refusal. The PAS test is only a tool for the police officer to determine whether or not to arrest you. You are then required to submit to a chemical test to determine what your blood alcohol level is. Also, if at the police station you submit to a chemical breath test and the test comes back lower than the officer anticipated, you may then be asked to submit to a urine test. This would be to determine whether or not you are under the influence of drugs or drugs and alcohol. A refusal to take this second test would constitute a refusal.

Most arresting officers will give you the choice between blood and breath. If however, you request a urine test but the officer does not suspect drugs being involved, the officer can refuse to allow the urine test and require you to take the blood or breath. Refusing to do this constitutes a refusal. Failure to perform the test correctly, not blowing hard enough into the machine or not providing enough urine, can constitute a refusal.

The rule is that you are offered one chance to submit to a chemical test after being arrested. If you refuse but later change your mind, the officer is not required to allow the test. This can then be deemed a refusal.

If you refuse to submit to a chemical test, the DMV and the Court will both take action, independent of each other. The DMV will automatically suspend your license. You have ten days from the date of your arrest to request a DMV hearing, which can postpone the suspension until after the DMV hearing. The only issues that will be taken into consideration at the DMV hearing are: 1) Did the arresting officer have a reasonable belief that you were DUI; 2) Were you lawfully arrested; 3) Did the arresting officer advise you that your license would be suspended for one year or revoked for two or three years, if you refuse to take the test or fail to complete the test; and 4) Did you willfully refuse to submit to or fail to complete a test after the officer asked you to do so.

If you are successful at the DMV hearing, your license will not be suspended. If however you are not, the DMV will suspend your license for one year for a first DUI; Revoke your license for 2 years for a second DUI; and revoke your license for 3 years for a third DUI. The DMV will take action regardless of the outcome at your court hearing.

The District Attorney and the Court have discretion to handle the matter in a few different ways. Because the arrestee refused to take a chemical test, there is no proof of DUI. If the DA believes that the arresting officer is not credible or articulate enough in front of a jury, the District Attorney may decide to reduce or dismiss the charges.

If you were to plead guilty to a reduced charge, but the DMV ruled against you at the DMV hearing, your license suspension still remains in effect. Along that same line, if the DA were to dismiss the refusal charge but requires you to plea guilty to the DUI, the DMV suspension remains in effect. However, if the Court dismisses the charges or the District Attorney decides not to file the case, you may be entitled to a new DMV hearing to try to get the suspension lifted. However, there is no guarantee that the DMV will agree to lift the suspension.

If the DA files DUI charges with the enhancement charge of refusing to submit to a chemical test, and you are found guilty or plead guilty to all charges, the sentence will be as follows:

An additional 48 hours in a county jail for your first DUI and a minimum nine-month California DUI School.

An additional 96 hours in a county jail for your second DUI within ten years

An additional 10 days in a county jail for your third DUI within ten years or an additional 18 days in a county jail for your fourth DUI offense within ten years.

These above penalties are “enhancements” that will be imposed in addition and consecutive to any other DUI sentence imposed by the Court.

There are defenses to DUI refusal charges that an experienced DUI criminal defense lawyer could present on your behalf that could result in a dismissal of the refusal charge. Some of the more common defenses are:

There was no lawful arrest. In other words, the police officer lacked probable cause to stop you or didn't have reasonable cause to believe that you were DUI. An unlawful arrest will result in a dismissal of your DUI and refusal charges. Or, if you were arrested for DUI but the officer didn't see you driving; you were only observed sitting in your parked car. This could result in an unlawful arrest. If an officer arrests you, even though there is no evidence to indicate that you are impaired, this could result in an unlawful arrest.

California law requires that the arresting officer must advise you of the consequences of refusing to submit to a chemical test. If the officer fails to advise you of the consequences of a refusal, the charges will be dismissed.

If you are incapacitated and unable to consent, you may not be charged with a refusal. However, the incapacitation must be due to a medical condition. Neither voluntary intoxication, nor any other self-induced condition will excuse the refusal.

If the refusal admonition was confusing or misleading. If the officer administers the admonition in a confusing or ambiguous way, or advises that a refusal "could" rather than "would" result in an automatic suspension, this could be seen as a justification for a refusal.

Anyone who has been arrested for DUI with a refusal should contact an experienced DUI refusal defense attorney to ensure that your rights have not been violated and that you are given the best defense available.