Introduction to DUI Chemical Test Refusals
California drivers are "deemed" to have given their consent to a chemical test of their breath or blood incident to a lawful DUI arrest. (Veh. Code, § 23612.) This is what is commonly referred to as California's "Implied Consent" law. However, while all drivers in California have given "implied consent" to chemical testing, they can still refuse to submit to a chemical blood test following a DUI arrest. When drivers refuse chemical tests, they're faced with a whole host of draconian punishments with both the DMV and courts, and their cases often raise nuanced Fourth Amendment issues.
If I Refuse a Chemical Test, What Happens at the DMV?
Drivers that refuse to submit to a chemical test incident to a lawful arrest will have their license suspended for one-year, two-years, or three-years, depending upon whether the arrest is for a first, second, or third DUI offense. (Veh. Code, § 13353.) First offenders who refuse a chemical test face a one-year license suspension with no eligibility for a restricted license; a license that allows drivers to drive to work during the course of their suspension.
Drivers facing a refusal suspension should immediately request a DMV Hearing and challenge the basis of the suspension. There are a variety of issues that we can address in fighting the refusal suspension. Most commonly, the issues are: (1) did the officer properly admonish the driver of the consequences of refusing the chemical test; and (2) did the officer have probable cause to believe the driver was driving under the influence of alcohol/drugs.
To suspend a driver's license in a refusal action, the DMV must prove that an officer properly admonished the driver of the consequences of refusal. The officer must tell the driver that failure to submit to, or the failure to complete, the chemical test will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153, and the suspension of the person’s privilege to operate a motor vehicle for a period of one year, two-years, or three-years. If an officer does not properly inform a driver of these consequences, the refusal suspension should be set-aside.
Further, an officer must have probable cause to believe that a person is driving under the influence of alcohol in order to request a chemical test. If an officer does not uncover sufficient evidence during their investigation that a person is under the influence of alcohol/drugs, yet demands a chemical test, then the suspension should be set aside. This is a bit more difficult than the improper admonishment argument, and usually involves the use of an expert, especially in drug DUI cases.
Because the administrative punishment with the DMV is so harsh for refusing a chemical test, I highly recommend requesting a DMV hearing on your suspension, and to fight that suspension. Losing driving privileges for a year can seriously disrupt a person's life and employment.
If I Refuse a Chemical Test, What Happens in Court?
Aside from the one-year driver's license suspension imposed by the DMV in refusal cases, courts impose enhanced punishments on persons who refuse a chemical test. (Veh. Code, §§ 23577, 23538.) An increased fine or mandatory jail time can be imposed, as well as a longer 9-month DUI education course. (Ibid.)
The increased penalties pose constitutional issues with respect to the Fourth Amendment. The Fourth Amendment prohibits law enforcement from drawing a DUI suspect's blood (not breath test) to determine the blood alcohol concentration without without a warrant, among other things. Meaning, the Fourth Amendment demands that, unless a suspect consents, officers have to get a warrant to take a suspect's blood.
This presents an interesting situation. A DUI suspect could be arrested for DUI, then be given the option to take a breath or blood test. The suspect requests a blood test, but tells officers he'll only take the blood test if they get a warrant as is required by the Fourth Amendment. This will undoubtedly amount to a "refusal" under California's implied consent law, and result in the imposition of increased criminal and administrative penalties. Accordingly, drivers that invoke their Fourth Amendment rights, and demand that law enforcement obtain a warrant in order to search their blood as is required under the constitution, will receive extra punishment arising out of the invocation of their rights.
Persons cannot be punished for invoking their constitutional rights. What good would they be if we could all be locked in jail for invoking our rights? This constitutional problem is looming over the California legislature, and defense counsel should be prepared to fight the refusal under the Fourth Amendment on the grounds that punishing a defendant for invoking their Fourth Amendment rights is unconstitutional.
DUI chemical test refusal cases are complex, but not impossible to defend. If you're facing a refusal action, please feel free to call me with any questions.