Any driver arrested for a DUI is required by California state law to submit to a chemical test. A chemical test can be a blood test, a breath test, or a urine test. A DUI refusal to submit to a chemical test is a more serious offense than a simple DUI. This article discusses Chemical Test Refusal in California DUI Cases. Click on the links below to go directly to your topic of interest.
1.WHAT ARE THE CONSEQUENCES OF BEING ARRESTED FOR A DUI WITH REFUSAL ALLEGATION?
2. WHAT IF I WAS ARRESTED FOR A CHEMICAL TEST REFUSAL BUT I WAS NOT DRIVING?
3. HOW CAN A DRIVER ARRESTED FOR A “REFUSAL DUI” IN LOS ANGELES FIGHT HIS CASE?
4. CAN THE POLICE FORCE DRAW BLOOD WHEN I REFUSE TO SUBMIT TO A CHEMICAL TEST?
5. CAN I FIGHT MY CASE IF THE OFFICER TOLD ME THE CONSEQUENCES BUT I STILL REFUSED?
6. WILL THE DMV SUSPEND MY DRIVER’S LICENSE FOR A REFUSAL TO SUBMIT TO A BREATH TEST AFTER A DUI IN LOS ANGELES?
The law on the consequences for Chemical Test Refusal is very severe and the right to have a hearing at the DMV expires fast.
- A first-time refusal will get a driver’s license suspended for one year with no ability to get a restricted license.
- A second time DUI with a refusal will result in a 2 years license revocation without an ability to get a restricted license. The second time DUI with a refusal will result in 2 years license revocation even if the first DUI was without refusal to submit to a chemical test.
Some people think, they will not get stopped, while driving on a suspended license, but the consequences of such a stop are very harsh. Not only, when a driver with a suspended license is stopped, his or her car will be impounded for 30 days, but also the driver will be cited for driving on a suspended license, an offense that carries a possibility of a fine and jail. Los Angeles DUI lawyers will need to contact the DMV within 10 days of arrest to request a hearing. Late hearings are rarely granted unless a very compelling excuse can be produced. Failure to request such a hearing will result in a loss of a license after the expiration of the temporary driver’s license issued at the time of the arrest.
In courts, Los Angeles DWI lawyers can usually relatively easily negotiate a disposition that does not involve refusal allegations, hence helping the driver to avoid “1-year suspension or 2 or 3 years revocation”. In the DMV, the allegations of a refusal are a lot more severe and will result in the above consequences with no ability to get a restricted driver’s license. Skillful strategy is often required to defend a Los Angeles DUI at the APS level (the DMV). Not all DUI lawyers in Los Angeles are able to build a defensible case in a refusal context with the DMV.
Even when the driver’s defense is “no driving”, Chemical Test Refusal will result in the same 1 years suspension or 2 or 3 years revocation. The “no driving” defense is very helpful in court, but at the DMV level, it will carry no weight as long as the officer had a reasonable cause to believe that the person was driving, the test is mandatory (provided the officer complied with the other 2 statutory requirements).
This change came from the 2007 case of Troppman v. Valverde (still director of the DMV). Prior to this landmark Supreme Court case, proof of actual driving was required to force the person to submit to a chemical test. Now, all that is needed is not proof of actual driving but a reasonable cause by the officer to believe that the person was driving. Thus, the standard to force a person to submit to a chemical test per VC 23612 is now very low and failure to do so will result in 1-year suspension or 2 or 3 years revocation.
In other words, if you are sitting behind the wheel of a car and an officer decides to arrest you for a DUI, you are required to submit to a chemical test and failure to do so will result in a suspension or revocation even when the DMV is unable to prove driving. Contrast that with the court where a failure by the prosecutor to prove driving will result in a “not guilty” verdict! By the way, even a “not guilty” verdict at court will not overturn the DMV’s finding of a refusal to submit to a chemical test.
Statutorily, a “Refusal DUI” is a more serious offense and adds 48 hours of custody consecutive to any other jail term imposed. In other words, if a refusal is charged on a first offense DUI, the statutory minimum becomes 2 days county jail. Trying a refusal DUI case is a better defensive position because the prosecutor often has less evidence of a crime.
Typically, the city prosecutor/DA will try to prove guilt by
(1) driving pattern
(2) objectives signs of intoxication such as red eyes, slurred speech, the smell of alcohol
(3) performance of the battery of field sobriety test (and no one ever passes all field sobriety test)
(4) results of a blood/breath test.
So, the less there is, the harder it is for the prosecutor to prove the DUI case. The prosecution position on Chemical Test Refusal is often characterized as conciseness of guilt – “defendant is guilty and did not want to provide evidence of the crime” aka “innocent people have nothing to hide and submit to testing upon request”. Of course, most people are either confused by the police officer and refuse because of the confusion or know that the DUI prosecution system is biased against drivers and they are better off refusing to submit to at least some parts of the investigation.
There is a number of cases that explain officer-induced confusion. Since the punishment for Chemical Test Refusal is a lot more severe at the DMV hearing, most published cases deal with appeals from writ denials or grants and use writ standard of reviews and burdens of proof. Even so, the decisions are factually based on DUI arrest and thus very relevant to criminal prosecution as well.
In Smith v. DMV 1 Cal App 3d 499, a police officer read advisement from the back of the DMV form and then said “you could lose your license”. Smith refused the chemical test and the court found that the petitioner was properly advised. In Ormonde v. DMV 117 Cal App 3d 889, the court also found against the driver when after getting the proper advisement, the driver who later refused to submit to a chemical test was also told by the police officer “chances are you will lose your license”. Some cases, such as Decker v. DMV 6 Cal 3d 903, are a lot more helpful to the defense, but all have one thing in common: officers confuse drivers all the time. Moreover, refusal or not, the police have the right to force a driver to submit to testing.
Although Police are legally allowed to force draw blood from persons suspected of DUI, as a matter of practice, it is not commonly done in Los Angeles county. Incidentally, at least some of Ventura County and most Orange County Law Enforcement Agencies do force draw blood. However, in Los Angeles, as a matter of policy, CHP, LAPD, and most other Law Enforcement Agencies do not force draw blood. Instead, they will rely on what they observed as the objective signs of intoxication and PAS (if available) to prosecute a DUI.
Importantly, a Chemical Test Refusal is a factor in aggravation for Los Angels is filed as a special allegation that carries 2 mandatory days of jail. As a matter of practice, it is usually a benign allegation that will be stricken during a plea. Also, a refusal to submit to a test, in theory, can not even be cured and the DMV will allege refusal even if the driver later changed his mind and decided to submit to a chemical test.
If you were arrested for a DUI, you were given an option to submit to a chemical test to determine the level of alcohol in your blood. If you were belligerent or otherwise told the officer that you did not want to submit to a chemical test, the officer was required to read a “chemical test refusal admonishment” as required by California Vehicle Code Section 23612 (otherwise known as implied consent law). As part of that reading, the officer would say that you do not have a right to talk to an attorney before submitting to the chemical test. That statement while legally correct often causes confusion because of its perceived conflict with Miranda rights. Recent court decisions prohibit mechanical reading of the admonishment when the officer makes not attempts to dispel confusion. In Zoe Hei Rim Hoberman-Kelly v. George Valverde, Director of DMV, the California Court of Appeals for First District, Third Division (Alameda County) ordered the DMV to give the license back to the driver after the court viewed the video the admonishment. There, Hoberman-Kelly allegedly refused to submit to a blood test to determine her blood alcohol content after an arrest for suspicion of driving under the influence. The DMV held a hearing and suspended her license. At the time of arrest, a video of the encounter was recorded and submitted as part of the record to the writ court and to the court of appeals. The court of appeals, after viewing the video, found that the officer reading of the admonishment was “mechanical” and he did not make any attempts to “dispel her confusions as to the right to contact counsel”. She also repeatedly stated that she would submit to a blood test.
After viewing the video, the court realized that Respondent was confused by the sign on the wall advising her that “she has a right to talk to an attorney”. CHP officer simply ignored Hoberman-Kelly’s questions about the right to talk to an attorney and continued to read the refusal admonishment rather mechanically. Further, the CHP officer, when he continued reading the admonishment must have realized that Hoberman-Kelly could not hear the admonishment. Lastly, the officer, once finished reading the admonishment asked if Hoberman-Kelly would submit to a chemical test and after Hoberman-Kelly replied “all right”, continued, “that’s a no” and that he would take it as a refusal.
This case is an example of confusion between the right to counsel permitted in criminal cases and “no right” to counsel prior to a blood or breath test after a DUI arrest. CHP officer conducting the DUI investigation had to made effort to explain that Miranda does not apply to the chemical tests.
6. Will the DMV suspend my driver’s license for a refusal to submit to a breath test after a DUI in Los Angeles?
Short Answer: Yes. The DMV will suspend your license for one year if you were never arrested for a DUI before or revoke it for 2 or 3 years if there are prior convictions or DMV suspensions. (CVC 23612)
Caveat: Unless you are under 21 years of age or on a DUI probation, you are not required to submit to a PAS (preliminary alcohol screening test) and failure to do so will not have any consequences. Submitting to PAS is mandatory for DUI probationers and persons who are under the age of 21.
Long Answer: Here I discuss what is a prior and variations of refusals for a DUI in Los Angeles.
(1) Factors to Influence Consequences of a Refusal
The factors that will influence the consequences of a refusal are (1) if a driver is on probation for a DUI (2) if a driver is under 21 years of age (3) if the driver has priorable convictions or APS suspensions of the Driver’s License in the past 10 years.
Priorable offenses are any of the following that occurred less than 10 years before the current arrest:
- Wet Reckless convictions (CVC 23103 per CVC 23103.5)
- .05% Minor DUI convictions (CVC 23140);
- Driving Under the Influence convictions (CVC 23152(a) or CVC 23152(b));
- DUI with Injury convictions (CVC 23153(a) or CVC 23153(b);
- Vehicular manslaughter convictions (PC 191.5 and PC192.5);
- Previous DMV suspension of Driver’s license because of a refusal to submit to a test (CVC 13353) – for a separate occasion than any of the listed convictions.
- Previous DMV suspension of Driver’s license because of driving with BAC of .08% or higher. (CVC 13353.2) – for a separate occasion than any of the listed convictions.
Minors have another prior to worry about:
- .01% Minor DUI DMV suspensions (CVC 23136 – infraction).
(2) Specific Instances:
First Offense – No Priors: 1-year suspension – no ability to get a restricted license (CVC 23612)
Second Offense – One Prior: 2-year revocation – no ability to get a restricted license (CVC 23612)
Third Offense – Two or more priors: – 3 years revocation – no ability to get a restricted license (CVC 23612)
PROBATIONER/MINOR REFUSAL CVC 13388/13389
A minor or a person who is on DUI probation have to submit to a preliminary alcohol screening test (PAS) when requested by a police officer when that person is suspected of driving with an alcohol concentration of above .01%. A refusal to submit to such a test will result in a suspension of a driver’s license for one year if there are no prior convictions, a revocation of the driver’s license for two years when there is one priorable conviction or revocation of the driver’s license for three years when there are two priorable convictions. If a PAS device is not available, the officer may request the driver to submit to regular testing pursuant to CVC 23612 (above).
In other words, a probationer or a minor, unlike everyone else, can not refuse to submit to a PAS testing of breath and a very low concentration of it will cause a suspension.
7. Can the DMV suspend my driver’s license for a refusal when I was unconscious after a DUI in Los Angeles?
Short Answer: No. There are multiple cases holding that a refusal has to be knowingly and can not be based on a failure to provide an answer due to intoxication.
Long Answer: In Hughey v. DMV, the court of appeal considered whether a person can defend an implied consent hearing by proof that he sustained a head injury. The court held that if a person provides substantial evidence supporting the finding that he was incapable of refusing a chemical test, he can use it to keep his driver’s license.
Under Thompson, if admonition was not heard by the defendant, then there is a defense.
If your DUI arrest in Los Angeles resulted in a refusal hearing with the DMV, please contact our drunk driving attorneys in Los Angeles to help you win your DMV and court case for a reasonable flat fee.
If you are looking for an experienced DUI lawyer in Los Angeles, call us immediately. You only have 10 days from the date of arrest to request a DMV refusal/APS hearing.
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