Under California’s implied consent law, drivers arrested on suspicion of DUI / DWI or driving under the influence of drugs (DUID) are required to submit to a chemical test to determine blood alcohol content (BAC) or signs of drug use. A driver who refuses a chemical test after a drunk driving arrest faces serious repercussions at the DMV. An experienced California DUI / DWI attorney can advise of the consequences of a chemical test refusal and develop a strategy to fight the charges.
Drunk driving arrests trigger two different cases – in court and at the DMV. Refusals carry serious sanctions in both cases. The most pressing issue for any accused driver is the DMV case – drivers have only 10 calendar days to request a DMV administrative per se (APS) hearing. If no hearing is requested, the DMV will begin the process of automatically suspending a driver’s license.
To prevail at an APS hearing, the DMV officer must prove three facts – that police had a reasonable belief that a crime was committed, that the arrest was lawful, and that the driver had a BAC of .08 percent or greater while behind the wheel. While refusing a chemical test may seem beneficial because there is no evidence of BAC at the DMV hearing or at trial, the punishment is severe. Because of the consequences, most DUI / DWI attorneys would advise drivers to submit to chemical tests after the arrest.
If a DMV hearing officer finds that a driver refused a chemical test, he or she will impose a lengthy license suspension – one year for a first refusal, two years for a second refusal, three years for a third refusal, and four years for a fourth refusal. Unlike drivers who submit to chemical tests, motorists who refuse will not receive a restricted license to drive to work.
Although most attorneys advise drivers to submit to chemical tests, that’s not always the case. However, refusals can be successfully challenged. Sometimes police indicate that a driver refused a chemical test when that’s not exactly the case. There are really two kinds of refusals, express refusals “the person saying no” and implied refusals, where the police say a refusal occurred but the person did not expressly refuse. An experienced California DUI / DWI lawyer can evaluate each case to determine whether an implied refusal might be excused.
In some cases, an implied refusal might be excused. For example, if a person arrested for DUI / DWI chooses to take a breath test, but then is unable to provide a sufficient sample of breath to allow for a reading, police officers often record this as a refusal, assuming the person is purposefully blocking the mouthpiece or not blowing hard enough. Often, the person may be ill or injured and unable to provide a sufficient sample, or the breath machine may have malfunctioned. In this situation, if a police officer does not allow a person who chose a breath test to take a blood test instead, and records it as a refusal, this refusal may be excused.
Sometimes a driver refuses to take a breath test, only to have police draw the person’s blood. If the person does not object to the draw “even though technically there is no permission either” there was no refusal. If the police officer had honored the initial refusal and not done the forced blood draw, a refusal would have existed. However, when the officer chose not to honor the refusal and took blood anyhow, the refusal is lost.
Some drivers are physically unable to either refuse or consent because of medical problems that cause a loss of consciousness. California courts have ruled that a driver who is semiconscious should not be deemed to have refused due to a medical condition that is not related to alcohol use.
Police are required to advise drivers of the consequences of refusal, namely that their driver’s license will be suspended or revoked. If the officer fails to advise the person of the implied consent law, the refusal may not be used against them.
Chemical test refusals can carry harsh consequences at the DMV, but refusals can be successfully challenged. A skilled California DUI / DWI criminal defense attorney can determine whether a motorist’s refusal was merely implied, and craft a strategy to protect a driver’s privileges at a DMV hearing.