Increased Punishment for Refusing to Take a Chemical Test

Drivers arrested for DUI / DWI who refuse to take chemical tests face consequences both in court and with the Department of Motor Vehicles. The refusal can be used to suspend or revoke the person's driving privileges in a separate DMV action. And although refusing a chemical test means there is no evidence of a driver's blood alcohol content (BAC) to introduce at trial, the refusal can be brought as a separate criminal charge, and the fact that the person refused a chemical test can be used as evidence of "consciousness of guilt." Fortunately, the skilled defense attorneys of The Kavinoky Law Firm have strategies available to diminish or even eliminate the repercussions of a chemical test refusal.

The most immediate consequences of a chemical test refusal in a California DUI / DWI case will likely occur at the DMV. For a first offense with refusal, the offender's driver's license will be suspended for one year, with no opportunity to receive a restricted license.

The penalties are even harsher for multiple drunk driving offenses. Although the Department of Motor Vehicles will suspend the driver's license of an individual charged with DUI / DWI even if the driver submits to a chemical test, the suspensions are longer for those who refuse.

In a second-offense DUI / DWI case within 10 years of a prior offense, the driver's license will be suspended for two years. For a third offense within 10 years, the driver's license will be suspended for three years. For a fourth offense within 10 years, the punishment is the same whether or not the driver refused a chemical test: A four-year revocation of the individual's driver's license.

Courts also punish accused drunk drivers for refusing to submit to a chemical test if the prosecutor files the refusal as a separate criminal charge. If the accused DUI / DWI driver isn't specifically charged with refusal, the court cannot increase the punishment. The refusal must also be proven beyond a reasonable doubt, just like the driving under the influence charge. Further, a person must first be found guilty of the underlying offense of drunk driving in order to be found guilty of refusal.

If the driver is found guilty of both DUI / DWI and refusal to submit to a chemical test, the punishment meted out will depend on the number of prior offenses. The driver may face additional jail time and a longer alcohol education program. This jail time is in addition to any other term imposed by the court.

For a first-offense DUI / DWI with chemical test refusal, the driver faces an additional 48 hours in jail. For a second offense, a refusal means 96 hours of jail. On a third offense with refusal, the penalty is 10 days in jail. For a fourth offense, the jail time is 18 days.

Because of the harsh penalties imposed, it's in the driver's best interest to submit to a chemical test when arrested for drunk driving or driving under the influence of drugs, but that's not always what happens. A lawyer who is well-versed in the consequences of chemical test refusal may be able to ease sanctions against drivers who refuse the test.