Refusal Cases

Drivers arrested on suspicion of DUI in California are required by law to provide a sample of their blood or breath for chemical testing for alcohol content. This is known as California’s Implied Consent Law. Any driver who refuses a chemical test after a lawful driving under the influence arrest faces stiff consequences from the Department of Motor Vehicles and during a court trial.

But what constitutes as refusal? Police and prosecutors consider a refusal to be anything other than absolute assent to the test. However, there are actually two types of refusals: Express, where the driver says no, and implied, where the police say a refusal occurred but the person did not expressly refuse. An experienced California DUI lawyer from The Kavinoky Law Firm will evaluate each case individually to determine whether an implied refusal might be excused.

In some cases, an implied refusal may be excused. For example, if the driver chose to take a breath test, but was unable to provide a sufficient sample of breath to allow for a reading. Police often record this as a refusal, assuming the person is deliberately blocking the mouthpiece or not blowing hard enough. However, the driver may have been ill or injured and was unable to provide a sufficient sample, or the breath machine may be faulty. In this situation, if a police officer does not allow a person who chose a breath test to take a blood test instead, and records it as a refusal, this refusal may be excused.

Another implied refusal that may be excused occurs when a driver refuses to take a breath test but police then draw the driver’s blood. If the individual doesn’t object to the draw – even though technically there is no permission granted either – police shouldn’t record it as a refusal. If the police officer had honored the initial refusal and not done the forced blood draw, a refusal would have existed. However, when the officer chose not to honor the refusal and took blood anyway, the refusal is lost.

Another type of implied refusal exists when a driver arrested for DUI was physically unable to either refuse or consent, or was in and out of consciousness. California courts have ruled that a driver who is semiconscious cannot be punished for a refusal that stems from a medical condition that is unrelated to alcohol use.

If an individual charged with drunk driving isn’t advised of the consequences of refusal, namely that their driver’s license will be suspended or revoked, or if the officer fails to advise the person of the Implied Consent Law, the refusal may be excused.

A police officer’s failure to advise the driver of the consequences of refusal may also serve as a valid defense at the DMV hearing to determine whether the driver’s license should be suspended.

Refusing a chemical test carries serious consequences with both the Department of Motor Vehicles and in criminal court. However, an implied refusal, where police merely assume that the driver refused a chemical test can often be successfully challenged by a California defense attorney experienced in handling DUI cases.

Consequences for DMV & Court

Drivers arrested for DUI 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. 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. 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 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 even if the driver submits to a chemical test, the suspensions are longer for those who refuse.

In a second-offense DUI 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 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 a DUI and refusal to submit to a chemical test, the punishment 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 with a 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 a chemical refusal, the penalty is 10 days in jail. For a fourth offense, 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.

Jury Instructions

A driver arrested for DUI in California is required by law to take a chemical test to determine blood alcohol content (BAC). Any driver who refuses to take a chemical test faces stiff consequences both at the DMV and at trial. In drunk driving trials, juries are given specific instructions on how to consider chemical test refusals.

Prosecutors typically use refusals as evidence of consciousness of guilt in driving under the influence cases. This type of tactic is necessary because the prosecutor doesn’t have any actual evidence showing the driver’s BAC. The typical argument is that the person arrested for DUI must have been drunk, or he or she would have agreed to a chemical test.

This prosecutorial strategy isn’t always effective. If jurors hear a valid reason for the refusal, such as injury, inability, or a desire to speak to a lawyer first, then they often excuse the refusal. Because of this, prosecutors lose more refusal cases than any other type of DUI case. The skilled defense lawyers at The Kavinoky Law Firm can help defendants who refused chemical tests plan a strategy to convince a jury to excuse the refusal.

The California Jury Instructions (CALJIC) addresses refusals specifically:

  • The law requires that any driver who has been lawfully arrested submit to a chemical test at the request of a peace officer who has reasonable cause to believe that the person arrested was driving under the influence.
  • If the defendant refused to submit to such a test after a peace officer asked him or her to do so and explained the test’s nature to the defendant, then the defendant’s conduct may show that he or she was aware of his or her guilt. If the jury conclude that the defendant refused to submit to such a test, it is up to them to decide the meaning and importance of the refusal. However, evidence that the defendant refused to submit to such a test cannot prove guilt by itself.

These instructions are typically read to jurors preparing to deliberate California DUI cases. CALJIC also addresses the enhancement of punishment in a refusal case, even though the jury is told that they cannot be concerned with the penalty or punishment in a DUI case:

  • Driving under the influence or with a blood alcohol level of 0.08 percent or more and failure to submit to or complete a test will result in the suspension of his or her driving privilege for one year, or the revocation of his or her driving privilege for two or three years.

As the instructions make clear, jurors must decide for themselves whether a driver’s refusal of a chemical test constitutes consciousness of guilt, and whether it can be excused. There may be a valid reason for a refusal that can be excused, and help minimize or even eliminate the consequences of a drunk driving case. A qualified California lawyer who focuses on DUI defense will thoroughly evaluate a refusal to determine whether a valid reason existed to decline a chemical test.

Forced Blood Draws

California’s Implied Consent Law dictates that any driver who is lawfully arrested for DUI must take a chemical test in order to determine their blood alcohol content (BAC).

If the driver refuses to submit to a chemical test of the blood, breath, or urine police can take a blood sample by force – either by holding the driver down, or by threatening to do so. During a forced blood draw, trained medical personnel draw blood to be analyzed for a drunk driving court case.

The United States Supreme Court allowed forced blood draws in drunk driving cases in the landmark 1966 case of Schmerber v. California. The Court ruled that police can take a person’s blood without a warrant for the purpose of chemical testing to determine intoxication, provided that the taking of the sample is done in a medically approved manner, after a lawful arrest, and based upon the reasonable belief that the person is intoxicated. If these three requirements are met, a forced blood draw does not violate the driver’s Fourth Amendment right against unreasonable search and seizure.

The Court ruled that it is unreasonable to require a warrant to draw someone’s blood in a DUI case because of the temporary nature of alcohol in the blood. However, many opponents believe that forced blood draws are an invasion of privacy and a violation of the right against self-incrimination.

In California, if police take the driver’s blood by force it is recorded as a chemical test refusal. Refusals carry numerous consequences, including fines, jail time, and suspension of driving privileges. Therefore, a forced blood draw may result in both a conviction for DUI and added penalties. Sometimes, police say that a DUI suspect refused even when he or she did not. These types of errors stem from issues that include misunderstandings resulting from language barriers, overreacting police officers, or drivers who fear needles.

An experienced defense attorney may submit a motion to the court to suppress the results of a forced blood draw from the evidence in a drunk driving trial. A suppression motion is a request typically made before the start of trial, where the court is asked to exclude evidence because it was not gathered in a constitutionally valid way.

If this protocol laid out by the Supreme Court for forced blood draws isn’t followed, the DUI defendant may validly claim a violation of his or her Fourth Amendment right. Suppressed evidence cannot be considered by the judge or heard by the jury. According to the legal principle of “fruit of the poisonous tree,” any evidence gained as a result of the unconstitutional evidence must also be suppressed.

Suppressing forced blood draws in California drunk driving cases is a serious and necessary weapon in the fight for constitutional rights. One of the few safeguards the law offers is where a person’s rights have been violated. The knowledgeable DUI defense attorneys at The Kavinoky Law Firm will review the procedures used in a forced blood draw to determine whether a driver’s rights were violated. If the proper protocol was not followed, the defense lawyer will argue that the evidence should be suppressed.