DUI Arrest: What Constitutes A Refusal To Test

It is common
knowledge that if you are arrested for DUI you MUST take some type of test to
determine your blood-alcohol level. In Orange County, only two tests are
available—blood or breath. A third alternative, urine, is available in other
jurisdictions. Any Orange County DUI Lawyer will tell you that the law requiring
you to submit to a blood test or breath test is called “implied consent” and is
found in section 23612 of the California Vehicle Code. Essentially, the law
says that as a condition of having the privilege to drive upon the highways,
you agree to take a test if you are arrested for DUI.

It is also
common knowledge that refusal to take the required chemical test
will have consequences, such as a much longer suspension time and possible jail
time. But what exactly constitutes a “refusal” is tricky and even some Orange County DUI Attorneys aren’t familiar with the fine
nuances of this area. But it is fair to say that the law is quite strict and
unforgiving on the driver who doesn’t immediately comply with the obligation to
test.

There are
really only two scenarios where case law (decisions of the courts) has held
that a driver’s refusal to take a blood or breath test after being arrested for
DUI does NOT constitute a refusal. The first is where the driver is confused
about his or her obligation to take a chemical test AND the confusion is caused
by the police officer. In the case of McDonnell
v. Department of Motor Vehicles, (1975) 45 Cal.App.3d 653, a driver was
arrested for DUI. The arresting officer read the driver his Miranda rights,
telling him he had the right to speak to an attorney. Then, immediately after
reading the driver these rights, the officer advised the driver of his
obligation to take a blood test or breath test.

The driver
said that he needed to talk to his DUI Lawyer first and refused to take any test without first consulting with
his DUI lawyer. The driver was arrested for DUI and was also charged with a
refusal. The driver appealed the DMV’s finding that he had “refused”. The court
agreed with the driver finding that the driver was confused about his
obligation to take a blood or breath test and that the confusion was caused by
the officer.

The second
scenario is where the driver sustains a concussion in an accident and is uncooperative
with the officers. In Hughey v.
Department of Motor Vehicles (1991) 235 Cal.App.3d. 752, the officer came
upon a driver who had been in an accident. When the officer smelled alcohol on
him, the officer arrested him. The driver became combative and several officers
were needed to subdue him. The driver refused to take any test and refused any
sort of cooperation. The driver’s DUI Attorney showed that although the driver was “conscious” and appeared
to be relatively uninjured, he had suffered a traumatic brain injury and could
not be held accountable for his actions.

In any other
instance where an officer arrests a driver for drunk driving, the driver must
agree to take a test or be charged with a refusal. As a rule, once the officer
advises the driver of the obligation to take the test, the officer need only
ask the driver ONE TIME to choose a breath or blood test. If the driver does or
says anything that can be construed as a refusal, the driver can then be
charged with a refusal. Even in cases where the driver changes his or her mind
and agrees to take the test, they can still be charged with a refusal.

If you have
been charged with a DUI call The Law Offices of EJ Stopyro at (949) 559-5500 today for a free and
confidential telephonic consultation with an experienced DUI Lawyer in Orange County. You can also visit us at www.EJEsqire.com. We have offices at 32702
Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675, and
1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.