In this post, I will explain the consequences of refusing a chemical test after being detained for a DUI.
Let’s get started…
But first, watch this video to understand what types of actions police consider to be refusals.
All motorists who drive in California, whether licensed here or not, have given their implied consent to submit to a chemical test of the blood alcohol concentration (BAC) level if an officer has probable cause to believe that the motorist has been driving while under the influence of alcohol or any other drug1.
This requirement is found under California Vehicle Code § 23612 (a)(1)(A) and (B) and California Vehicle Code §13384.
Is There A Difference In Pre-Arrest And Post-Arrest Chemical Tests?
Yes. A pre-arrest chemical test is called a Preliminary Alcohol Screening (PAS).
Unless you are a driver under 21 pulled over for a DUI or on probation from a prior DUI conviction, a PAS is just another field sobriety test and you will not face consequences for refusing to take it.
If You Refuse The PAS, Can That Be Used Against You?
Refusal of a PAS cannot be used in your criminal case as evidence of driving under the influence.
What About Refusing A Post-Arrest Chemical Test?
If you are pulled over and then arrested, a refusal of a post-arrest chemical test will result in additional penalties if you are convicted.
If You Take A Breath Test But Refuse The Blood Test Is That Considered A Refusal?
If you do take a breath test but the officer observes clear indications from your demeanor that a blood test would detect the presence of drugs, then the officer may request that you submit to the blood test.
If you refuse, then you face the consequences of refusal unless you can prove your refusal was reasonable or justified.
Can You Refuse A Urine Test?
You also may not refuse a urine test if your breath test resulted in a BAC of 0.08% or more but the officer asked that you also take the urine test for the presence of drugs2.
Can You Change Your Mind And Take The Test After Refusing?
You are only given one chance to submit to testing and may not, after some reflection, change your mind3.
Can You Consult With An Attorney Before Taking A Chemical Test?
You also have no right to consult with an attorney before deciding.
You can refuse chemical testing without being forced to submit, with some exceptions, but you face an enhancement to the criminal penalties if your refusal was not reasonable or justified under the circumstances.
What Is The Penalty Enhancement For Refusing A Chemical Test?
If your refusal is deemed unreasonable, you face the following additional days in custody:
- Additional Days In Custody
A post-arrest refusal to submit to chemical testing that is sustained by the DMV will result in an automatic suspension of your license for:
- 1-year for a first DUI offense
- For a second refusal, it is 2-years with the court having the discretion to suspend your license for up to 10-years
- A third refusal or subsequent one is 3-4 years with a possibility of up to 10-years.
A refusal will not permit you to obtain a restricted license at any time during the period of your license suspension.
Your refusal can also be used by the prosecution to argue that it demonstrates consciousness of guilt and that if you had taken the test, your BAC would have been at least 0.08%4.
Are There Any Other Additional Penalties?
If you have no prior DUI convictions: 6 additional months in DUI school.
You can challenge your refusal on the following grounds:
- The officer did not give the proper admonitions advising you of the consequence of refusing to submit to chemical testing.
- Your arrest was unlawful.
- You were unable to hear or comprehend the admonitions and could not give meaningful consent so long as alcohol or drugs are not the cause5 (deafness or unable to understand English).
- You were unable to complete the breath test because of a physical condition and your inability was not intentional or willful, and you were not offered another test. However, if you were offered an alternative test and refused this would still be considered a refusal6.
- You were unlawfully forced to submit to blood testing against your will.
What Happens If I Was Not Told That My Refusal Would Lead To Additional Penalties?
Under California’s Vehicle Code 23612, you must be notified of the consequences of refusing to take a chemical test after arrest.
If you were not advised, or not properly admonished, of the consequences, you will have a strong defense to have your refusal excused.
What Would Make An Arrest Unlawful?
The police had insufficient probable cause to arrest you such as not performing an investigation prior to your arrest or they did not have reasonable suspicion to pull over your car.
What Is Considered Not Being Able To Comprehend The Admonition?
An officer has the burden of giving the proper warnings regarding taking and refusing a chemical test in a “manner comprehensible to the driver” or the mandatory suspension of a driver’s license may be set aside7.
If you were unable or incapable of understanding the admonition, then you may not be penalized for refusing8, so long as your incapacity or inability was not induced by alcohol or drugs.
You Were Unable To Complete The Breath Test Because Of A Physical Condition
If you are incapacitated because of bodily injury such as head trauma, epilepsy, etc., your failure to take a chemical test will be excused.
If you were physically unable to perform the breath test, the officer can ask that you submit to a blood test.
Your refusal to submit is a refusal and can lead to revocation of your license9.
Note that your incapacitation may not be a result of choice.
For example, you may not refuse the test because you decide you are too drunk but if you were unconscious as a result of drinking too much then that would not constitute a refusal.
Can The Police Force You To Take A Blood Test?
There are limited circumstances under which a suspect can be forced to provide a blood sample10
Anyone of the following can result in a forced blood draw after a valid search warrant has been obtained:
Can A Refusal Be Used In A Trial?
Yes. There is a jury instruction in the California Criminal Jury Instructions that allows the prosecutor to argue that refusal to take the chemical test constitutes a consciousness of guilt.
This may lead the jury to believe that the reason you refused was that you had something to hide.11
I have heard that breath tests can be inaccurate; am I allowed to choose which chemical test to take?
You are permitted to request a blood test over a breath test at any point. However, a urine test is only available in limited circumstances. If the police officer has probable cause to believe you have ingested drugs, he has the right to take a blood test from you even if you request just a breath test. The police are then required to save a sample of your blood so that you may test it independently.
Will I absolutely be convicted of DUI if I refused the chemical test?
While refusing a chemical test provides for an enhancement in a DUI, it also presents a situation where the prosecutor is working with less evidence. Therefore refusal cases can sometimes be plea bargained down to a wet reckless or an exhibition of speed. However, a dismissal of the DUI in the criminal court does not preclude the DMV from suspending your license if you are unsuccessful in a DMV hearing. Additionally the prosecutor may strike the refusal enhancement for the purposes of sentencing so that you are not bound by the enhancement penalties. This also does not alleviate the DMV consequences should you be unsuccessful in your DMV hearing.
What if I remained silent when asked which test I preferred to take?
This will constitute as a refusal in the eyes of the DMV. Failure to respond to the question of which test you would like to take after a proper DUI arrest will result in the refusal enhancement penalties after an unsuccessful DMV hearing.
What if I tried to blow but the machine didn’t register a reading and I declined the blood test?
The police will likely write in their report that you were purposely not providing a sufficient breath sample for the breath machine and by declining the blood test, you will be deemed to have refused by the DMV. This can, however be argued in court as a lack of sufficient facts to sustain a refusal. Because the criminal proceeding has a higher standard of proof (beyond a reasonable doubt), a prosecutor may be more likely to consider reducing your charges or in the alternative you may make a successful argument to a jury that you did not refuse.
If I am convicted of DUI and I refused the chemical test, will I absolutely face jail time?
Not necessarily. There are many alternatives that prosecutors will consider in lieu of jail. The Secure Remote Alcohol Monitoring Device (SCRAM), is one way to negotiate around jail. The SCRAM device measures the alcohol in your sweat and will notify the prosecutor when you consume alcohol. In lieu of jail, your attorney may negotiate that you will not consume any measurable amount of alcohol and verify this by having you wear a SCRAM device.
If you have been arrested and would like to learn more about how attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
Request A Free Consultation 818-351-9555
- Implied Consent Statute. Veh. Code, § 23612 [↩]
- People v. Roach (1980) 108 Cal.App.3d 891, 893 [↩]
- Dunlap v. Dept. of Motor Vehicles (1984) 156 Cal.App.3d 279, 283 [↩]
- People v. Sudduth (1966) 65 Cal.2d 543, 547 [↩]
- [T]he burden is properly placed on the officer to give the warning required by section 13353 in a manner comprehensible to the driver.” (Thompson v. Dept. of Motor Vehicles (1980) 107 Cal.App.3d 354, 363 [165 Cal.Rptr. 626].) Thus, in Thompson, supra, 107 Cal.App.3d at p. 363, the court set aside the defendant’s license suspension because radio traffic prevented the defendant from hearing the admonition. [↩]
- If the defendant selects one test but is physically unable to complete that test, the defendant’s refusal to submit to an alternative test constitutes a refusal. (Cahall v. Dept. of Motor Vehicles (1971) 16 Cal.App.3d 491, 496 [94 Cal.Rptr. 182]; Kessler v. Dept. of Motor Vehicles (1992) 9 Cal.App.4th 1134, 1139 [12 Cal.Rptr.2d 46]. [↩]
- Thompson v. Department of Motor Vehicles (1980) 107 Cal.App.3d 354, 363 [↩]
- Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 760 [↩]
- Kessler v. Department of Motor Vehicles (1992) 9 Cal.App.4th 1134, 1139 [↩]
- Missouri v. McNeely (2013) 133 S.Ct. 1552 [↩]
- Cal Crim 2130 [↩]