Your Rights Concerning DUI Refusal In California

Many people who are pulled over in the state of California under suspicion of driving under the influence (DUI) refuse a blood alcohol (BAC) test – but if you’ve been arrested because of suspected DUI and refuse to provide a chemical test, you may face additional enhancements to your DUI charges. In California, a DUI refusal can be far more serious than a typical DUI charge. If you have been charged or think there is any possibility that you might be charged with a DUI refusal, contact an experienced DUI attorney in your local area. If you have been arrested for DUI refusal in Northern California, contact Bair Legal to speak with an attorney who has experience handling DUI refusal cases.

What Constitutes A California DUI Refusal?

Generally, if you have been pulled over and suspected of DUI, you have the right to refuse a pre-arrest breathalyzer test. (The Preliminary Alcohol Screening (PAS) breathalyzer is a voluntary test for persons who are over the age of 21 and are not on probation for a prior DUI.) The same goes for field sobriety tests, as well. Note that this is different from a chemical blood alcohol test that may be performed at a hospital or police station which, according to California Vehicle Code section 23612 you have already given "implied consent" simply by operating a motor vehicle. Refusing or resisting this chemical test will result in an additional charge on top of your DUI, known as "refusal enhancement."

When it comes to California DUI refusal, you should also be familiar with the phrase "implied refusal." Examples of an implied DUI refusal include failure to blow hard enough into the breathalyzer, or if a person is unable to give consent due to unconsciousness. Sometimes, the PAS machine itself may be broken or malfunctioning, and through no fault of your own you may be charged with implied refusal. Under the law, if you cannot complete the test of your choice, you must provide the other option; failure to do so will result in a refusal being alleged. It is also important to understand that if you refuse the initial PAS but give no objection to the drawing of blood in a hospital or police station, you cannot be charged with DUI refusal.

What Happens If I Refuse A Breathalyzer Test?

If you refuse a breathalyzer test and/or a field sobriety examination, you will probably be arrested – though if you have been asked to take these tests in the first place, then the officer was more than likely already planning on arresting you regardless, and there are no additional charges for refusing these tests. A growing number of jurisdictions are allowing District Attorneys to allege a "consciousness of guilt" for persons refusing to comply with an Officer’s "in field" requests.

There are, however, a number of legal ramifications that may result due to your refusal of a BAC test at a hospital or police station. For a first-offense DUI refusal enhancement charge, offenders may face an additional 48 hours of jail time and a year-long driver's license suspension; a second offense brings an additional 96 hours of jail and a two-year driver's license suspension, while a third offense constitutes an additional10 days of jail and a three-year driver's license suspension. These charges are, of course, on top of any sentences or fines that are imposed due to a DUI charge.

Is It Possible To Fight DUI Refusal Charges in California?

It is possible to fight cases involving DUI refusal in California – although a qualified DUI attorney really is necessary due to the complexity of such legal cases. As long as you are aware of your rights and have an experienced legal team on your side, you may be able to plead guilty to lesser charges or even have the charges dropped entirely. Some possible defenses include:

  • Unlawful DUI Arrest: If it is found in a court of law that the officer did not have a sufficient legal reason to pull you over in the first place, or to place you under arrest, then any of your potential charges can and will be dropped. Furthermore, if your DUI charge is dropped, then you cannot be charged with a refusal enhancement and this charge must be dropped as well. These courtroom outcomes do not impact potential suspension from the DMV through the Adminstrative Per Se process.

  • The arresting officer failing to inform you about the consequences of a breathalyzer test refusal is another reason. When you refuse a test, the officer must give you a very clear, concise, and detailed explanation of the possible consequences as a result of your refusal. If this has not been performed by the officer, then an attorney will do their best to make sure that justice is served and your charges are dropped.

As you can see, there are a lot of factors that determine whether or not you are actually guilty of DUI or DUI refusal in a court of law. With the proper legal expertise working on your side, you can be sure that all of these factors are considered and that you are given a fair trial in the state of California.