When a driver is arrested on suspicion of DUI / DWI, he or she is required to provide a sample of their blood or breath for testing for alcohol content, or a sample of blood or urine if they are suspected of driving under the influence of drugs (DUID). This is called the “implied consent” law. A driver found to have refused consent can face stiff consequences from the DMV or at a court trial.
So what constitutes a refusal? Case law indicates that a refusal is anything other than unequivocal assent to the test. However, 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 drunk driving defense lawyer can evaluate each case to determine whether an implied refusal might be excused.
There are some instances where an implied refusal might be excused or not considered a refusal. For example, if a person arrested for driving under the influence 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 sick or injured and unable to provide a sufficient sample, or the breath machine may be faulty. 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.
Another example exists when a person refuses to take a breath test, and the police officer then draws the person’s blood. If the person does not object to the draw (even though technically there is no permission either), a refusal does not exist. 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.
Another situation where a refusal may be excused is when the person arrested for DUI / DWI is physically unable to either refuse or consent, or is in and out of consciousness. California courts have determined 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.
In most states, a person arrested for driving under the influence does not have the right to consult with an attorney before deciding whether to submit to a chemical test or deciding what type of test to take. However, if someone is charged with drunk driving, and they aren’t properly told of the consequences of refusal, namely that their driver’s license will be suspended or revoked, or if the officer fails to advise the person of the implied consent law (in jurisdictions where this is required, such as California), the refusal may not be used against them.
Also, at the DMV hearing to determine whether a driver’s license should be suspended, a motorist can launch a defense based on the fact that the police officer failed to issue a proper warning of the consequences of refusing to provide a blood or breath sample for testing.
Refusing a chemical test can lead to consequences at the DMV or during a criminal proceeding. However, an implied refusal, where police make the faulty assumption that the driver refused a chemical test, can often be successfully challenged by an attorney who specializes in DUI / DWI cases.