Refusing a Chemical Test In California

States have implemented implied consent laws which require drivers to submit to chemical tests if they are arrested for driving under the influence (DUI) of alcohol or drugs. The California implied consent law specifically states:

“Any person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purposes of determining the alcoholic content of his or her blood, if lawfully arrested for any offense allegedly committed in violation of [the California DUI laws].”

Unfortunately, many drivers are not aware that they do not have to submit to the chemical test until after they are arrested for DUI. So what if the officer asks you to take a preliminary alcohol screening or PAS test? The officer should notify you that this DUI test is optional. You may refuse to submit to this test, but if you do, remember the officer may arrest you for DUI and a refusal of additional chemical testing may have very severe consequences.

For instance, if you are arrested for a California DUI and you refuse a chemical test, not only will you be charged with DUI, you will also have the DUI penalties enhanced which could mean additional fines, probation, jail time, etc.

I refused the DUI Chemical Test, what next?

If you have been arrested for DUI you will have an administrative hearing held by the California Department of Motor Vehicles. This hearing must be requested within 10 days from the date or your DUI arrest and will allow you to challenge your administrative license suspension.

1. Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of 23140, 23152 or 23153?
2. Were you lawfully arrested for DUI?
3. Were you driving a motor vehicle with a BAC of .08% or more by weight of alcohol in your blood?

If you refused to submit to the chemical test the additional issues will be considered at your DMV hearing:

1. Were you properly advised that your California license would be suspended for one year or revoked for two or three years if you refused to submit to or failed to complete a chemical test?
2. Did you willfully refuse to submit to or fail to complete a chemical test after the officer asked you to do so?

What happens if you are not successful at the DMV Hearing? You may have your license suspended for 1 year if this is your first California DUI offense, 2 years if this is your second DUI conviction within 10 years and 3 years if this is your third DUI offense within 10 years.

Positive Results of Refusing a Chemical Test

Assuming your refuse the chemical test (and the officer does not force you to take one) it may have a positive impact on your DUI case. If the District Attorney does not have enough corroborating evidence to prove you were DUI, the charges may have to be dismissed.

What happens if the California D.A. pursues a DUI case against you? You must either plead guilty or no contest to the DUI in which case the refusal enhancements will apply or you can take your chances at trial.

If you go to trial and lose your DUI case you will face an additional 48 hours in a county jail for your first DUI offense and a minimum of 9 months in a California DUI education program. These enhancement penalties are in addition to the other DUI penalties assessed by the court.

Can the California Officer Force me to submit to a Chemical Test against my will after a DUI arrest?

Many California drivers are surprised to find out that a California police officer can force them to submit to a chemical test after a California DUI arrest if the DUI arrest was lawful, there is no unreasonable risk of infection or pain or the officer does not use “excessive force”.

Other conditions must also be met to make the DUI chemical testing lawful. First, the circumstances of the California DUI arrest must require prompt chemical testing, the officer must have evidence to suspect the driver is DUI and the test must be given in a “medically approved” manner.

Hiring a DUI lawyer

If you have refused a chemical test or you have been arrested for driving under the influence of alcohol in California and you are concerned your rights have been violated, contact a DUI lawyer.

If you are interested in contacting a DUI lawyer, fill out the FREE case evaluation form and a DUI advocate will contact you to discuss the facts of your DUI case. Visit our website at http://www.duiattorneyhome.com or call our 24/7 DUI Help Line at 1- 866-228-3201.

The following two tabs change content below.

Beth

Beth L. is a content developer for LeadRival, a cutting edge company that helps connect DUI lawyers with DUI clients. Beth L. writes about a variety of DUI topics to help drivers who have been arrested for DUI, getting them the legal help they need.

Leave a Reply

Your email address will not be published.