Under California law, (California
Vehicle Code Section 23612), every driver lawfully arrested for DUI must submit
to a blood or breath test. There is no right to consult with your Orange County DUI attorney before submitting to the test. If you refuse to take a blood or
breath test you will be charged with a “refusal” along with DUI. A refusal is a
separate crime and will result in additional penalties, including mandatory
jail time in many cases.
First-Offense DUI
A driver arrested for
first-offense DUI who refuses to take a blood or breath test faces a one-year
suspension of their driver’s license with no possibility of a restricted
license. If the DUI resulted in injury to anyone other than the driver, then they
also face a mandatory 48 hours in the Orange County jail.
first-offense DUI who refuses to take a blood or breath test faces a one-year
suspension of their driver’s license with no possibility of a restricted
license. If the DUI resulted in injury to anyone other than the driver, then they
also face a mandatory 48 hours in the Orange County jail.
Second
Offense DUI
Offense DUI
If the driver has a
prior DUI within 10 years of the new DUI charge and the driver refuses a test
the law requires a mandatory additional 96 hours of time in the Orange County
jail, (on top of the jail sentence for the underlying DUI), and a two-year driver’s
license revocation for a refusal. Again, your DUI lawyer will not be able to
qualify you for a restricted driver’s license if the refusal is found true.
prior DUI within 10 years of the new DUI charge and the driver refuses a test
the law requires a mandatory additional 96 hours of time in the Orange County
jail, (on top of the jail sentence for the underlying DUI), and a two-year driver’s
license revocation for a refusal. Again, your DUI lawyer will not be able to
qualify you for a restricted driver’s license if the refusal is found true.
Third Offense DUI
Where the driver has two
prior DUIs within the past 10 years and refuses the test, they face an
additional 10 days in Orange County jail and a three-year license revocation. They
will not be eligible for a restricted license.
prior DUIs within the past 10 years and refuses the test, they face an
additional 10 days in Orange County jail and a three-year license revocation. They
will not be eligible for a restricted license.
What Counts As A Refusal?
If the driver’s DUI
defense attorney called the DMV within ten days of the DUI arrest and requested
a hearing, (called an APS hearing), then the burden is put on the DMV to prove
its case against the driver before the driver can be penalized by the DMV for a
refusal. At the DMV hearing California Vehicle Code Section 13558(c)(1)
requires the DMV to prove four things:
defense attorney called the DMV within ten days of the DUI arrest and requested
a hearing, (called an APS hearing), then the burden is put on the DMV to prove
its case against the driver before the driver can be penalized by the DMV for a
refusal. At the DMV hearing California Vehicle Code Section 13558(c)(1)
requires the DMV to prove four things:
1)
That
the police officer had reasonable cause to believe that the person had been
driving a motor vehicle while under the influence of alcohol or drugs;
Thatthe police officer had reasonable cause to believe that the person had been
driving a motor vehicle while under the influence of alcohol or drugs;
2)That
the person was lawfully arrested for DUI;
Thatthe person was lawfully arrested for DUI;
3)That
the person was advised that a refusal would result in a suspension or
revocation of their driving privileges; and
Thatthe person was advised that a refusal would result in a suspension or
revocation of their driving privileges; and
4)That
the person refused or failed to complete the test after being requested to test.
Thatthe person refused or failed to complete the test after being requested to test.
Oddly enough, the DMV
does not have to prove that the person was actually driving. Rather, they only need to prove that the
officer had reasonable cause to
believe that the person has been driving. This issue sometimes arises
when the police find a person near or inside of a parked car. In such a case, the
driver’s DUI defense attorney may actually get the case dismissed in the Orange
County court but still lose at the DMV hearing.
does not have to prove that the person was actually driving. Rather, they only need to prove that the
officer had reasonable cause to
believe that the person has been driving. This issue sometimes arises
when the police find a person near or inside of a parked car. In such a case, the
driver’s DUI defense attorney may actually get the case dismissed in the Orange
County court but still lose at the DMV hearing.
Choice Of Test
In Orange County, a
driver arrested for DUI is required to take either a blood or breath test. The
urine test is not available here. But the law clearly states that if the
arresting officer has specific evidence indicating that the driver may also be
under the influence of drugs, then the officer can insist that the driver submit
to a blood test. For example, if the officer smells marijuana coming from the
car or finds any drugs, legal or illegal, inside the car, then the office will
be within his authority to demand the driver take a blood test. A failure to
comply will be charged as a refusal.
driver arrested for DUI is required to take either a blood or breath test. The
urine test is not available here. But the law clearly states that if the
arresting officer has specific evidence indicating that the driver may also be
under the influence of drugs, then the officer can insist that the driver submit
to a blood test. For example, if the officer smells marijuana coming from the
car or finds any drugs, legal or illegal, inside the car, then the office will
be within his authority to demand the driver take a blood test. A failure to
comply will be charged as a refusal.
The Officer Must Advise The Driver Of
The Consequences of Refusing
The Consequences of Refusing
In order to be penalized
for a Refusal, the officer have fully admonish the driver of their legal duty
to take the test and the consequences of refusing to do so. The admonition must
consist of the following exact language read from the back of a form. If the
arresting officer does not read the exact language on this form, then the driver
was not properly admonished of their legal duty to submit to a test. If they
were not properly admonished, a driver cannot be punished for refusing.
for a Refusal, the officer have fully admonish the driver of their legal duty
to take the test and the consequences of refusing to do so. The admonition must
consist of the following exact language read from the back of a form. If the
arresting officer does not read the exact language on this form, then the driver
was not properly admonished of their legal duty to submit to a test. If they
were not properly admonished, a driver cannot be punished for refusing.
What Constitutes “Refusing”
Once the arresting officer
properly admonishes the driver of their legal duty to take a test, the driver’s
consent to submit to the test must be “clear and unambiguous”. Moreover, the
driver gets only one chance to agree to take the test after they have been
properly admonished. If the driver does not consent to take a test after being
admonished, then the Refusal is complete.
properly admonishes the driver of their legal duty to take a test, the driver’s
consent to submit to the test must be “clear and unambiguous”. Moreover, the
driver gets only one chance to agree to take the test after they have been
properly admonished. If the driver does not consent to take a test after being
admonished, then the Refusal is complete.
Once a driver refuses,
they can be charged with Refusal, even if they change their mind and agree to the
test. One offer plus one rejection equals a refusal, even if you later comply. In
many cases where a driver adamantly refuses, the police will get a warrant and
literally hold the driver down while a blood technician draws the blood. Again,
even though the police eventually get the blood, the driver will still be
charged with a refusal.
they can be charged with Refusal, even if they change their mind and agree to the
test. One offer plus one rejection equals a refusal, even if you later comply. In
many cases where a driver adamantly refuses, the police will get a warrant and
literally hold the driver down while a blood technician draws the blood. Again,
even though the police eventually get the blood, the driver will still be
charged with a refusal.
If the officer attempts
to read the admonition to the driver and the driver is disruptive during the
reading the driver can be charged with a refusal. Where the driver is
cooperative and agrees to a test but become uncooperative during the test, this
is also a refusal. Willful failure to complete a test is also a refusal. For
example, where a driver agrees to take a breath test, but during the test purposely
doesn’t blow hard enough to produce a result.
to read the admonition to the driver and the driver is disruptive during the
reading the driver can be charged with a refusal. Where the driver is
cooperative and agrees to a test but become uncooperative during the test, this
is also a refusal. Willful failure to complete a test is also a refusal. For
example, where a driver agrees to take a breath test, but during the test purposely
doesn’t blow hard enough to produce a result.
If a driver chooses one
test but is unable to complete it, then they must submit to the other test. For
example, where a driver chooses the breath teat but cannot blow hard enough or
long enough (perhaps due to asthma or other respiratory condition), then they must
submit to the blood test. Failure to so submit constitutes a refusal. However, where
a driver has hemophilia or is taking anticoagulant medicine, they are exempt
from taking a blood test.
test but is unable to complete it, then they must submit to the other test. For
example, where a driver chooses the breath teat but cannot blow hard enough or
long enough (perhaps due to asthma or other respiratory condition), then they must
submit to the blood test. Failure to so submit constitutes a refusal. However, where
a driver has hemophilia or is taking anticoagulant medicine, they are exempt
from taking a blood test.
Defenses
Police officer induced confusion
If the driver’s DUI
lawyer can show that the driver was confused with respect to their obligation
to take a test and the confusion arose because of something the officer said or
did, then the driver cannot be punished for refusing. For example, if the
officer read the driver their Miranda rights (which state they have the right
to an attorney) right before the test, and the driver reasonably, although
mistakenly, believes they have the right to talk to an attorney before they
take the test, then the confusion is the officer’s fault.
lawyer can show that the driver was confused with respect to their obligation
to take a test and the confusion arose because of something the officer said or
did, then the driver cannot be punished for refusing. For example, if the
officer read the driver their Miranda rights (which state they have the right
to an attorney) right before the test, and the driver reasonably, although
mistakenly, believes they have the right to talk to an attorney before they
take the test, then the confusion is the officer’s fault.
Driver Not Placed Under Arrest At
Time Of Request
Time Of Request
The driver’s obligation
to a blood or breath test doesn’t begin until the driver is officially arrested.
The driver’s DUI lawyer will most likely subpoena any audio and video in the
case. Since many police agencies in Orange County, including the CHP and
Sheriff’s Department, have audio and video recordings of the encounter with the
driver. Sometimes the recordings prove that the officer didn’t place the driver
under arrest before admonishing them of their duty to submit. In these cases
the driver will avoid the penalties for refusing.
to a blood or breath test doesn’t begin until the driver is officially arrested.
The driver’s DUI lawyer will most likely subpoena any audio and video in the
case. Since many police agencies in Orange County, including the CHP and
Sheriff’s Department, have audio and video recordings of the encounter with the
driver. Sometimes the recordings prove that the officer didn’t place the driver
under arrest before admonishing them of their duty to submit. In these cases
the driver will avoid the penalties for refusing.
Lack Of Reasonable Suspicion
The driver’s obligation
to submit to a blood or breath test doesn’t arise unless the officer had a
lawful reason to stop the driver in the first place. The officer must have
observed the driver break the law before a stop can be considered legal. If the
stop is not based on a law violation, then usually the refusal must be
"set aside" at the DMV. In the Superior Court a skilled DUI defense
attorney will file a suppression motion and, if the judge agrees that there was
lack of reasonable suspicion to make a legal stop, the case will likely be
dismisses.
to submit to a blood or breath test doesn’t arise unless the officer had a
lawful reason to stop the driver in the first place. The officer must have
observed the driver break the law before a stop can be considered legal. If the
stop is not based on a law violation, then usually the refusal must be
"set aside" at the DMV. In the Superior Court a skilled DUI defense
attorney will file a suppression motion and, if the judge agrees that there was
lack of reasonable suspicion to make a legal stop, the case will likely be
dismisses.
Improper Admonishment
It is typical in DUI
arrests for the arresting officer to “informally” (without reading the
admonition form verbatim), ask the driver to take a blood or breath test. This
"informal" request is not a legal admonition and does not oblige the
driver to take a test. If the officer does not read the exact admonition from
the DMV form, then the admonition is improper and the refusal must be "set
aside" at the DMV and cannot be punished in court. Again, this is usually
proved by the audio recording that the driver’s DUI attorney gets from the
District Attorney.
arrests for the arresting officer to “informally” (without reading the
admonition form verbatim), ask the driver to take a blood or breath test. This
"informal" request is not a legal admonition and does not oblige the
driver to take a test. If the officer does not read the exact admonition from
the DMV form, then the admonition is improper and the refusal must be "set
aside" at the DMV and cannot be punished in court. Again, this is usually
proved by the audio recording that the driver’s DUI attorney gets from the
District Attorney.
Driver Sustained Head Injury
Where a driver has
suffered a head injury and that injury makes it difficult or impossible for the
driver to understand the rather complex admonition, then the driver cannot be
held accountable for a refusal and it must be "set aside" at the DMV.
This is also a defense in court and usually requires the driver’s DUI defense
lawyer to have a head-injury specialist testify in court.
suffered a head injury and that injury makes it difficult or impossible for the
driver to understand the rather complex admonition, then the driver cannot be
held accountable for a refusal and it must be "set aside" at the DMV.
This is also a defense in court and usually requires the driver’s DUI defense
lawyer to have a head-injury specialist testify in court.
Involuntary Intoxication
Where a driver is too
intoxicated to understand the admonition because they are too drunk, they are
still, in most cases, on the hook for the refusal. But if the intoxication isn’t
voluntary, then they have a defense. Involuntary intoxication occurs, for
example, where someone puts a drug or alcohol in the driver’s food or drink
without them knowing about it. In these cases the intoxication is involuntary
and the refusal must be "set aside" at the DMV. Involuntary
intoxication is also a defense in court and if the driver’s DUI defense
attorney can establish it there the case could be dismissed or the driver found
not guilty by a jury at a DUI trial.
intoxicated to understand the admonition because they are too drunk, they are
still, in most cases, on the hook for the refusal. But if the intoxication isn’t
voluntary, then they have a defense. Involuntary intoxication occurs, for
example, where someone puts a drug or alcohol in the driver’s food or drink
without them knowing about it. In these cases the intoxication is involuntary
and the refusal must be "set aside" at the DMV. Involuntary
intoxication is also a defense in court and if the driver’s DUI defense
attorney can establish it there the case could be dismissed or the driver found
not guilty by a jury at a DUI trial.
Operator Error
Where a driver chooses
to take a breath test and they correctly blow into the machine, but the machine
doesn't give a reading, then there is a good chance that the machine doesn’t work
or the operator isn’t using it properly. When this happens the driver cannot be
charged with a refusal. If the driver’s DUI attorney can show that the error
was the officer’s and not the driver’s the driver cannot be penalized.
to take a breath test and they correctly blow into the machine, but the machine
doesn't give a reading, then there is a good chance that the machine doesn’t work
or the operator isn’t using it properly. When this happens the driver cannot be
charged with a refusal. If the driver’s DUI attorney can show that the error
was the officer’s and not the driver’s the driver cannot be penalized.
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