Vehicle Code 23612: Refusing a Chemical Test in California

THE LAW: California Vehicle Code Section 23612 requires that submission to a chemical test of blood or breath after a lawful arrested for a DUI.  If you are arrested for a DUI in Los Angeles, you can choose either a breath test or a blood test, but if one test is not available, you have to submit to the remaining available test.  If you are either afflicted by hemophilia or take anticoagulant medication under the direction of a doctor for a heart condition, you are exempted from the blood test. (California Vehicle Code Sections 23612(b) -(c)).  However, if you have hemophilia or a heart condition, you will be required to submit to a breath test.  If both blood and breath tests are not available, the driver has to submit to a urine test (CVC 23612(d)).  That affects all people, including those with listed medical conditions.

CONSEQUENCES OF A REFUSAL ON A DRIVER’S LICENSE: One of the most serious consequence of being arrested for a DUI with a refusal in Los Angeles is the effect such an arrest will have on your Calfornia Driver’s license.  Lots of times, the prosecutors will strike the refusal allegations during plea negotiation – so refusal readily will have any real consequences on the criminal case.  The mandatory 48 hours jail time (required by law when the refusal allegation is proven) usually will not be imposed and a refusal allegation in the criminal court will, usually, not effect a disposition. In contrast, at a DMV hearing, if a refusal is proven, California Driver’s license will be suspended for one year when there are no priors. With one prior, the DMV will revoke the driver’s license for 2 years and with 2 priors, the period of revocation in increased to 3 years.  The current law permits restricted license after some actual suspension for any DUI, as long as some conditions are imposed, such as ignition interlock is installed.  However, a refusal hearing does not allow for a restricted license and if DMV proves refusal, you will not be able to get a restricted license.

You can fight your Refusal Hearing with the DMV if the officer did not comply with CVC 23612.  That statute requires several things:

It says that the officer must tell you that you don’t have a right to have an attorney (CVC 23612(a)(4)).  That means that if the officer did not tell you that – you can win your DMV hearing.

When the California State Legislature passed the laws penalizing refusals to submit to chemical tests – they decided not to permit any driving for up to 3 years.  Los Angels DUI attorney has lots of experience arguing with the DMV and the court and proving to them that there was no refusal or that you were entitled to refuse a chemical test.  If you refused to submit to a chemical test (after being lawfully arrested for a DUI and told of the consequences), you are likely to face a one-year license suspension by the DMV even if this is the first DUI.  A refusal to submit to a chemical test during a second or a third DUI will result in a two or three years license revocation.   No driver license restriction is allowed after a refusal.  If the refusals to submit to a chemical test is plead and proven in a criminal court, Los Angels DUI defendant must be sentenced to an additional 48 hours in the county jail in addition to any other jail sentenced required by the law.  For example, a first offense DUI conviction does not require any jail time, but a first offense DUI conviction with “a refusal”, will be given 48 hours in jail.

But don’t worry!  Our Los Angeles DUI Lawyers prefer refusal cases to non-refusal cases for criminal prosecution because often in refusal cases police have less evidence of alcohol impairment and therefore it is easier to defend.  Ironically, although California penalizes refusals to submit to chemical tests, federal law recognizes constitutional rights to refusal police investigations and therefore not strict on refusals.  For example, you can not be punished to refuse to answer police questions based on the constitutional right not to incriminate himself.  Blood tests that the DA wants to introduce at a trial, should only be introduced if the blood/breath sample was taken in compliance with the 4th amendment to the US Constitution.  

To prevent the prosecution from introducing the chemical test results, a “search and seizure” motion must be filed – requiring the prosecutor to meet its burden of proof – such as to find an exception to the warrantless seizure of blood.  (See Missouri v. McNeely 133 S.Ct 1552).  McNeely court held that “compelled intrusion beneath the skin and into veins to obtain blood for use in a criminal investigation implicates most personal and deep-rooted expectation of privacy” and “…[s]earch warrants are ordinarily required for searches of dwellings…absent an emergency, no less could be required where intrusions into the human body are concerned…even when the search was conducted following a lawful arrest”.  Despite this United States Supreme Court language, California insists on the prosecution of refusals for a failure to submit to chemical tests.  Los Angeles DUI lawyer will litigate your Los Angeles DUI through the Search and Seizure motions as based on the conflict between California and Federal law, arguing that Vehicle Code 23612 (a) violates federal law and the refusal should not be introduced as evidence of guilt.  These motions are usually successful with blood tests are used (see below). 

Even at the jury trial, Los Angeles DUI lawyer can argue to the jury: “how can you find a defendant guilty of the refusal, when the Supreme Law of this land allows refusals”.  If a person has an absolute Federal right not to incriminate himself and chose refusals to chemical tests, how can that be punished in State court?  (Supreme Court in 1973 said that warrantless search of the person is reasonable only if it falls within a recognized exception (the United States v. Robinson, 414 U.S. 218, 224). This argument in conjunction with the lack of evidence due to refusals to submit to chemical tests can be used by Los Angeles DUI lawyer to defend against a refusal DUI in Los Angeles.  

On June 23, 2016, the Supreme Court in its decision Birchfield v. North Dakota decided to complicate the refusal laws by permitting a warrantless breath test but not blood test after a DUI arrest.  In California, the arresting officer usually will offer either a breath or blood test and will inform a DUI suspected driver that a refusal to submit to either test will result in enhanced punishment in court and loss of license at the DMV.  The suppression motion will be successful when officer threatens jail time unless defendant consents to blood or breath test.  The Birchfield decision does not apply to the DMV hearing because the DMV hearings are not criminal but civil and administrative in nature.  Unfortunately, the 4th Amendment Search and Seizure Constitutional arguments do not apply to non-criminal cases.  Birthchfield court engaged in a very detailed analysis of DUI offenses by providing research of national average of refusal cases (20%) and by providing statistics that on average one person dies in a DUI accident each hour and by relying on FBI documents showing numbers of DUI arrest exceeding 1.1 million people in 2014.