DUI Attorneys in Orange County
If you were arrested for an OrangeCounty DUI or DUI with injury the
arresting officer should have told you that you MUST submit to either a blood test or a breath test
under California’s implied consent law. (California Vehicle Code Section 23612) If you “refuse” to take one of these
chemical tests, then you will be charged with a refusal
in the court proceedings and at the DMV hearing. (See what constitutes a “refusal”
in our previous blog or visit our website and
click refusal) If the allegation of a refusal is
sustained, it could mean mandatory jail time and
a longer license suspension. If you ARE charged
with a refusal, here are some of the possible
defenses:
Officer Induced Confusion
If the police officer said or did
anything during the DUI investigation that would reasonably have caused you to
be confused with respect to your legal obligation to take a test, then a
refusal cannot be sustained against you. For example, if the officer read you
your Miranda rights (which state you have the right to a DUI attorney) directly
before the test, and you mistakenly thought you had the right to talk to a DUI lawyer in Orange County before taking
the test, then the confusion is reasonable.
Not Under Arrest Yet
Since the obligation to take a
test of your breath or blood does not arise until after you have been
arrested, if your DUI lawyer shows that the arresting officer admonished you about the
test before you were actually arrested, then there is no refusal.
No Probable Cause to Stop You
The obligation to take a blood test or breath test also does not
arise unless the officer had a lawful reason to stop you in the first place. DUI attorneys know that the
officer must have observed you break the law before a stop can be considered
legal. If the stop is not based on a law violation, then the refusal can’t be
sustained in the court proceedings or at the DMV hearing.
Not Properly Admonished
Often, once an officer makes an
arrest for DUI, he or she will informally ask the arrestee if they will take a
blood or breath test. This "informal" request does not constitute a
proper admonition of your obligation to take a test and the consequences if you
don't. If the officer does not read the exact admonition as reproduced above,
then the admonition is not proper and the refusal must be "set
aside".
Head Injury
If a person arrested for an OrangeCounty DUI has suffered a head injury and that injury makes it difficult or
impossible to understand the complex admonition, that person cannot be held
accountable for a refusal and it must be "set aside".
Involuntary Intoxication
If you are arrested for DUI and
are too intoxicated to understand the admonition, that will not save you from a refusal unless
the intoxication was involuntary. For example, if someone puts a drug or alcohol in your food
or drink without you knowing it, then the intoxication is involuntary and the
refusal must be "set aside".
Operator Error
If you choose to take a breath
test and you properly blow into the machine, but the machine doesn't give a
reading, then this is probably the result of operator error. In this case you
cannot be charged with a refusal. Since the error was not yours, the refusal
must be "set aside".
If you are charged with a DUI call the Law Offices of EJ Stopyro at (949) 559-5500. You
can speak to an experienced Orange County DUI lawyer today. The consultation is
free and confidential. Or visit our
website at www.EJEsquire.com.
Law Offices of EJ Stopyro
DUI Lawyers in Orange CountyOrange County DUI Attorney
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