Vehicle Code 13353: Penalties for a Chemical test refusal

August 17, 2016

vehicle code 13353

If a police officer pulls you over with a reasonable suspicion that you were driving under the influence, you can be compelled to submit to a chemical test. Chemical testing means getting a “breath” or “blood” from you for analysis.  The reason the police do that is to measure the amount of alcohol or any other intoxicating substance in your blood. Vehicle Code section 13353 explains the driver’s license consequences for those who refuse to submit to a chemical test after a lawful demand by police.  A driver, who refuses to give his blood or breath sample for chemical testing should be aware of the possible consequences of such a decision.

California Vehicle Code 13353

VC 13353 (a)  If a person refuses the officer’s request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, and that the person had refused to submit to, or did not complete, the test or tests after being requested by the officer, the department shall do one of the following:

  1. Suspend the person’s privilege to operate a motor vehicle for a period of one year.
  2. Revoke the person’s privilege to operate a motor vehicle for a period of two years if the refusal occurred within 10 years  …
  3. Revoke the person’s privilege to operate a motor vehicle for a period of three years if the refusal occurred within 10 years of any of the following …

Charges and aggravating factors

A first-time chemical test refusal can lead to one year of driver’s license suspension.  If you are accused of a second DUI refusal, your license can be revoked for two years.  Also, it does not matter whether or not you refused to complete a chemical test in a previous DUI.  In other words, even if this is your first refusal to give a sample of the breath of blood, but a second DUI arrest, you are facing the same harsh consequences of possible two years driver’s license revocation as the person whose previous DUI was a refusal DUI as well.  California Vehicle Code 13353 requires driver’s license revocation for the second DUI when a refusal to submit to a chemical test is alleged. In court, the punishment section for a refusal allegation also requires an additional two-day jail sentence upon proof of a refusal allegation.

Driving on a suspended license can get you in serious trouble. If your license is suspended or revoked after a DUI conviction or a DMV finding of a “refusal” or driving with blood alcohol over the legal limit, you can face new criminal charges. Not only you can face new criminal charges, but the police can also impound your car for 30 days and make you pay for it.  The police can also sell your car under the nuisance provisions if you continue to drive on a suspended or revoked license.

Because DUI is a priorable offense, your previous arrests and convictions can increase punishment.  For example, as stated above, a second DUI with a refusal allegation may cause a two years license revocation. A third DUI arrest with a refusal allegation can cause a 3 years license revocation. For purposes of California Vehicle Code 13353,  a prior is not just a DUI but also:

  • A wet reckless conviction under CVC 23103 per CVC 23103.5;
  • A Vehicular manslaughter conviction;
  • Any previous license suspension when caused by a DUI or a refusal to submit to a chemical test.

The refusal allegation can be alleged even if you were not driving.  If a police officer has a reasonable belief that you were driving, he can make you submit to a chemical test. Even proving in court that you were not driving will not overturn a DMV license suspension or revocation.

VC 13353 for minors or DUI probationers

If you are under 21 or on DUI probation, the consequences of a DUI are much stricter because the legal limit is 0.01 BAC instead of 0.08 BAC for non-commercial drivers.  Also, minors and probationers are required to submit to a preliminary alcohol screening test (PAS) if Los Angeles police officers suspect impaired driving. Submission to the preliminary alcohol screening test (PAS) is not required if the driver is over 21 years of age and for those who are not on DUI probation.

Fighting Refusal Cases in Los Angeles DUI Arrest

Defending a Los Angeles DUI refusal case is often easier for a Los Angeles Criminal Defense attorney than defending a Los Angeles DUI because, typically, the DA will have less evidence of DUI than with Los Angeles DUI cases. Commonly, the accusation in Los Angeles DUI refusal cases are:

  • Your driving and whether or not you were following traffic laws or driving erratically at the moment of detention.  For example, speeding, although illegal, is not a contributing factor for DUI cases;
  • The Results of blood/breath tests (yes, many people will submit to some form of a chemical test such as PAS before deciding to refuse any chemical testing required by law);
  • Results of field sobriety tests (as explained in our other posts which include studies that show field sobriety tests to be unreliable);
  • Objective signs of intoxication: red eyes, slurred speech, diffused attention, the smell of alcohol or any other intoxicating substances such as marijuana, etc.)

Thus, the less information the police have, the better it is for you. In addition to lack of evidence, a good defense attorney will use the following elements to defend VC 13353 charges:

  • Miranda Warning. A very commonly known legal consent requires the police officer to read the rights after a person is detained.  After that, the driver has to reply that he understood everything said and is informed about his or her rights. If the officer questions the defendant without giving Miranda warning, any confession can be thrown out. The confession can be interpreted broadly, and include admission to driving and drinking.  If the police officer read the chemical test refusal admonishment mechanically or confuses the driver, proving this in court can help the DUI defense greatly.
  • Forcing to submit to a blood test. Police have the ability to force a driver to submit to a blood test. Most police agencies have a policy not to force blood draw. If the officer injured the driver during a forced blood test, this can help the driver throw out the results and possibly get a dismissal.
  • DMV specifics. In the case of a DMV hearing, the consequences of a refusal are often a lot stricter for the drivers, and the punishments are more severe because of a lengthy suspension without the ability to get a restricted license. Even if you changed your mind and agreed to a test after a refusal, DMV can ignore the consent and consider that as a DUI refusal anyway. For that reason, it is often very helpful to speak to Los Angeles DUI defense attorney to help win your DMV refusal hearing.

If you are arrested for a DUI, please call Los Angeles DUI Attorney to talk to someone who is qualified to help you defend your case. Los Angles DUI attorney is known for his dedication to his clients and his ability to get the best results for his clients in the most desperate situations. We offer great payment plans and can help you not only in court but also at the DMV. Our Los Angeles DUI lawyer is able to provide quality defense at an affordable price.

Los Angeles DUI Attorney

(818) 921 7744  Call anytime to get a free consultation with Los Angeles DUI Attorney.

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