In California, if you have a driver’s license, you are obligated to take a chemical, breath or urine test if you are arrested for DUI or DWI. There are consequences to refusing to take a chemical test. However, there are also defenses and anyone who is being charged with DUI and refusing to take a chemical test, should consult with an experienced DUI defense attorney to ensure that the arresting officers followed proper procedure.
To further explain, if you are pulled over and asked to take a roadside breath test, a Preliminary Alcohol Screening Test, otherwise know as a PAS test, under California law, you are not required to take the test. There are a lot of problems with the PAS test and thus, not necessarily the best option. However, if you are arrested for DUI, once you arrive at the police station, you must submit to a breath or blood test. It is recommended that you agree to a breath test, rather than blood. You need only submit to a urine test if you have been arrested for driving under the influence of drugs.
If you refuse to take either test, you are presumed to be under the influence and, along with being charged with DUI, the additional charge of refusing to submit to a chemical test, will be added. This allows the prosecution to enhance the penalties. On a first offense for DUI, you lose your license for 4 months. However, if you refused to submit to a test, you lose your license for one year.
There are strict guidelines as to what a police officer must advise someone who is refusing to take a chemical test. The officer must fill out a Chemical Test Admonition Form and read it, word for word, to the individual. The officer must then properly document the responses. If the police officer has failed to properly document the admonition form, an experienced DUI defense attorney will have a good chance of getting a “No Refusal” outcome, based on the fact that the officer didn’t follow guidelines prescribed by law.
If an individual refuses at the scene to take a chemical test and is arrested, once at the police station, that individual can then change his or her mind and agree to a test. If however, the individual refuses to take a blood test and requests a breath test, and the officer refuses to allow the breath test and will only allow a blood test, this is not a refusal. This is an example of improper procedures on the part of the officer. The individual must be given the chance to take the test, and decide which test they are willing to take.
Refusing to take a chemical test if arrested for DUI has harsh punishments. The DMV will suspend your license of one year and if you have a prior, it is a two-year revocation of your driving privilege. Further, unlike a first offense for DUI, if you refuse to take a test, you may not apply for a restricted license.
If you are being charged with refusing to take a chemical test after being arrested for DUI, it is imperative that you hire a DUI Defense Attorney who is familiar with and knows the laws as they relate to refusals as well as the duties required by the arresting officer. Failure to properly follow guidelines and/or properly document the event on the part of the officer can result in a “No Refusal” verdict.
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