A person lawfully arrested for DUI in California is required by law to submit to a blood, breath or urine test to determine if he is under the influence of alcohol, drugs or both. This requirement, known as the "implied consent" law, is stated in California Vehicle Code Section 23612:
"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]."
California's implied consent law applies only to the chemical test given at the police station or at the hospital after a DUI arrest. It does not apply to the handheld PAS machine that officers sometimes ask DUI suspects to blow into prior to the DUI arrest. The PAS test is voluntary for persons 21 years of age and older.
A person lawfully arrested for DUI who refuses a chemical test will not only be charged with DUI, but also with a "refusal enhancement" under Vehicle Code 13353 and Vehicle Code 23577. The refusal enhancement can increase the DUI penalties as follows:
Additional DUI Penalties for a BAC Test Refusal
First DUI Offense: 1 Year Drivers License Suspension and 48 Hours of Jail
Second DUI Offense: 2 Year Drivers License Suspension and 96 Hours of Jail
Third DUI Offense: 3 Year Drivers
The court imposes the jail time and the DMV imposes the drivers license suspensions. These penalties are imposed in addition to the standard punishment for DUI, such as probation, fines, alcohol programs, AA meetings and possibly further jail time.
Can I Fight The Refusal Charge in My DUI Case?
Absolutely. For the refusal charge to stick, it must be proven at the DMV hearing and the DUI prosecutor must prove it beyond a reasonable doubt in court. A DUI defense lawyer can fight the refusal charge at both of these places.
Some of the defenses that may be asserted include:
The driver was not lawfully arrested for DUI:
If the DUI officer lacked a sufficient basis to pull you over, or later to arrest you, then the DUI and the refusal enhancement will be dismissed.
The driver was not under the influence:
If a court or jury acquits you of the underlying DUI charge, then the refusal enhancement ceases to exist as far as the court is concerned. The DMV, however, may still seek to suspend your drivers license.
The DUI officer failed to advise the driver properly of
The DUI police officer must give you a very specific set of warnings as to what will happen if you refuse to take the chemical test. (See Jury Instruction on Refusal) If he fails to give you this warning properly, the refusal cannot be held against you by the court or the DMV.
The DUI officer himself caused confusion about the BAC test:
The DUI officer must give the warning in a manner comprehensible to the driver. If the officer's conduct or explanation of the law cause the DUI suspect to be confused as to the requirement to take the BAC test, this may negate the refusal penalty.
Can the DUI Prosecutor Elect to Drop the Refusal Enhancement?
Yes. As part of plea negotiations, the prosecutor will often dismiss or "strike" the refusal enhancement. Many prosecutors hate to go to trial on refusal DUI cases because they don't have a BAC test result to use against the defendant. So they are often willing to settle the cases on more favorable terms, depending on the state of the other the evidence.
What If I Initially Refused, But Later Agreed to Take the Test?
Suppose you initially refuse to take the blood or breath test. But a few minutes later you change your mind and tell the officer "OK, I agree to take it." Unfortunately, under California DUI law, it still counts as a refusal. As the law puts it, "One offer plus one rejection equals one refusal."