What Are The Consequences Of Refusing To Submit To A Chemical Test After A DUI Arrest?


Most California drivers are aware that the law does not convey the same Constitutional rights, which are normally afforded to an arrestee, when the person is arrested for driving under the influence. For example, the driver does not have an immediate right to an attorney or the right to remain silent. Most important, a driver lawfully arrested for suspicion of driving under the influence must submit to a chemical test or face a mandatory suspension of his or her driver’s license.   This is known as the “implied consent” law. Even when a driver refuses the test but then changes his or her mind and submits, it will still be considered a refusal.

The law requires that the arresting officer clearly advise the driver that a refusal will result in a suspension of the driver’s license to drive. (Vehicle Code §23612(a)(1)(D).) However, the warning is enough; the officer is not required to obtain the driver’s acknowledgement that the driver understands the consequences of refusal.

But what if a driver is incapable of comprehending the warning and refuses the test? In some situations, this might be a defense to the consequences of test refusal. Being incapable of comprehending the warning does not mean the driver was too drunk to understand or unable to comprehend due to a “self-induced condition.” The courts have “consistently held that a self-induced condition rendering the driver incapable of understanding and refusing to submit to a test, particularly if the condition results from alcohol consumption, does not excuse failure to take a test.” (Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 759.)

Still, the courts have allowed that there are times when a driver, due to no fault of his or her own, genuinely cannot comprehend the warning. For example: In the above cited case, Hughey v. Department of Motor Vehicles, the court considered whether a person may be “in a condition which rendered him incapable of refusing to take the test.” In that case, the driver was involved in an accident and then arrested for DUI. He refused to consent to a chemical test. It was later revealed that the accident caused head trauma to the arrested driver, which could have made it difficult, if not impossible, for him to have understood the admonition or the significance of his refusal to submit. In another case, Thompson v. Dept. of Motor Vehicles (1980) 107 Cal.App.3d 354, the driver could not hear the officer’s warning because radio traffic interfered with the driver’s ability to hear. The appellate court held that the driver was, therefore, incapable of comprehending the warning.

The consequence for refusal to submit to a chemical test upon a DUI arrest is being challenged in our highest court. Just last month (December 2015) The United States Supreme Court agreed to hear cases from Minnesota and North Dakota where refusing a chemical test upon an arrest for DUI is charged as a crime separate from the driving under the influence charge. The Supreme Court will consider whether this infringes upon a person’s Constitutional rights. While not entirely applicable to California law where refusal is not charged as a separate crime (the driver’s license suspension is considered an administrative sanction), the Court’s holding may nonetheless affect the administration of the implied consent law in California.