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.
In most criminal cases, you have a 5th Amendment right to not incriminate yourself by being forced to talk to police or to testify at trial. However, this right does not extend to all factors that might incriminate you. For instance, you are not permitted to refuse fingerprinting if arrested even if your prints may implicate you in a certain crime as it is not considered “testimonial.”2. The courts have extended this to your compliance to giving a chemical test of your BAC if probable cause exists, even if the results may show you were under the influence or had a BAC of 0.08% or more when driving. Your refusal to submit, unless reasonable under the circumstances, will have administrative and criminal consequences.
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 a refusal unless you can prove your refusal was reasonable or justified.
You can refuse chemical testing without being forced to submit, with some exceptions, but you face additional criminal penalties if your refusal was not reasonable or justified under the circumstances.
If your refusal is deemed unreasonable, you face these possible additional criminal penalties:
- Additional Days In Custody
- If no prior DUI convictions: 6 additional months in DUI school
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 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%3.
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
- Your refusal was the result of an injury not caused by alcohol or drugs
- You were unable to hear or comprehend the admonitions and could not give meaningful consent so long as alcohol or drugs are not the cause4 (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 refusal5
- You were unlawfully forced to submit to blood testing against your will
However, even if your refusal to submit to testing does not result in the mandatory suspension of your license, the court may still allow your refusal to be used against you at trial6.
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.
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. 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 drugs10.
You are only given one chance to submit to testing and may not, after some reflection, change your mind11. You also have no right to consult with an attorney before deciding.
There are limited circumstances under which a suspect can be forced to provide a blood sample12. Any one of the following can result in a forced blood draw after a valid search warrant has been obtained:
If I am pulled over on suspicion of DUI but have not been arrested yet, do I have to submit to chemical testing?
No. 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. However, 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. Refusal of a PAS cannot be used in your criminal case as evidence of driving under the influence. However, if you do submit to a PAS, the results can and will be used in your case as evidence that you were driving under the influence.
What happens if I was not notified by the police officer that my refusal would lead to additional penalties if I were convicted?
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. https://aizmanlaw.com/common-police-mistakes-dui-stop/
Can I still get a restricted license if I refused chemical testing?
If you are convicted of refusing a chemical test, you are violating the state’s implied consent law and do not qualify for a restricted license whether it is your first offense or third offense.
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.
My refusal to take the chemical test was involuntary because I was incapacitated. Can that still be used against me?
If you are incapacitated because of bodily injury such as head trauma, epilepsy, etc., your failure to take a chemical test will be excused. Note that your incapacitation may not be a result of choice. Choosing to drink or take drugs and becoming incapacitated from that activity is not a valid excuse for failing to take a chemical test.
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.
Will the prosecutor be able to use my refusal against me 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 because you had something to hide.1
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.
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- Implied Consent Statute. Veh. Code, § 23612 [↩]
- Schmerber v. California (1966) 384 US 757 [↩]
- 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]. [↩]
- People v. Municipal Court (Gonzalez) (1982) 137 Cal.App.3d 971, 978 [↩]
- 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 [↩]
- People v. Roach (1980) 108 Cal.App.3d 891, 893 [↩]
- Dunlap v. Dept. of Motor Vehicles (1984) 156 Cal.App.3d 279, 283 [↩]
- Missouri v. McNeely (2013) 133 S.Ct. 1552 [↩]