joomla stats



After being arrested for a DUI refusal in Pasadena or the Los Angeles area, many clients have been told by their loved ones, other attorneys, and sometimes even law enforcement, that fighting a DUI refusal is pointless and it is impossible to win a DUI refusal allegation.  This cannot be further from the truth.  California law does impose upon every driver the requirement that if he or she is suspected of driving under the influence of alcohol or drugs, the driver must provide a breath or blood test when requested to do so by a police officer.  This is called the “implied consent” law and is codified in Vehicle Code section 23612.  When a peace officer arrests you for suspicion of driving under the influence (DUI), and you fail or refuse to provide a breath or blood sample after being requested to do so, the prosecutor or DA will charge you with Vehicle Code section 23152(a), driving under the influence as well as a refusal allegation. 

While it is true that DUI refusal cases pose challenges, there are defenses that can be raised!


  1. Officer Lacks Reasonable Suspicion to Stop the Driver or Lacks Probable Cause to Arrest

To legally pull over a motorist, the officer must have reasonable suspicion to believe the driver committed a traffic infraction or some other crime. A Pasadena DUI enforcement officer can pull over a driver for even the smallest violation, such as the license plate light being out, or the front windows being illegally tinted.  Once detained, the officer is supposed to proceed with the traffic ticketing process. However, police officers typically write in their reports that they noticed objective symptoms of intoxication when they began conversing with the driver.  This then provided reasonable suspicion to conduct a DUI investigation to determine if the driver was DUI.

As part of the DUI investigation, the officer will typically request the driver perform Field Sobriety Tests (FSTs) and to breathe into a preliminary alcohol screening device called a “PAS” for short.  Also, when officers ask drivers how much they drank, when they drank and where they drank, most motorists freely divulge this information, unwittingly incriminating themselves. (This is why the safest course is never volunteer ANY information that you are not legally required to provide.)  Based upon the driver’s own admissions, the officer’s observations and the field sobriety tests, the officer will determine if he has probable cause to arrest you for a DUI.  At the time of your arrest or shortly thereafter, the officer is required to admonish you regarding implied consent. Sometimes the officer will read the admonishment verbatim from a card. Other times he will paraphrase.  Essentially, the admonishment advises the driver that he or she is required by law to provide a breath or a blood test. The breath test is not the PAS, but is rather a chemical test conducted on a larger machine at the police station.  A blood test can be preserved and retested later, so a driver must be given the option to do a breath or blood test.

If the officer did not have reasonable suspicion to pull the driver over, or detain the individual initially, then all the evidence obtained after the stop would be suppressed as fruits of an illegal search and seizure. A motion to suppress can be filed and presented to the court under PC 1538.5. A judge would make a ruling as to whether the evidence gets suppressed. If the motion is won, the case will usually get dismissed because the District Attorney is left with insufficient evidence to prosecute their case.

  1. The Driver Was Not Driving Under the Influence

A refusal DUI in Pasadena or Los Angeles requires the prosecutor to demonstrate that the driver actually was driving under the influence in violation of California VC 23152(a).  If the prosecutor can’t prove that the driver was driving while impaired, then the defendant cannot be convicted of a DUI refusal.

  1. Officer Gives Incomplete or Inaccurate Admonition

California DUI laws require law enforcement to give the driver an admonition in which the driver is told that they must provide a chemical test of their breath or blood, and if they refuse or fail to do so, they will face specific consequences.  Such consequences must be explained to the driver, which include losing one’s license for at least one year, or two or three years, that the driver will be charged criminally for the refusal and that that the driver cannot speak to an attorney prior to deciding which test to take or prior to taking the chosen test. If the Pasadena peace officer failed to provide a complete admonition or it was not communicated clearly, or if confusion was created by the officer, then there is a strong defense that the defendant did not willfully fail or refuse to provide a chemical sample of his or her breath or blood.

  1. Involuntary Driver Incapacitation Not Caused by Voluntary Intoxication.

If a driver is arrested in Pasadena or Los Angeles for a DUI, but is physically unable to understand the officer, and the physical incapacity is not the result of voluntary intoxication, then this could be a strong defense, because the defendant was not able to refuse or consent to the chemical test.  Involuntary incapacitation can arise from a medical condition, a car accident, or from the involuntary ingestion of drugs (i.e., a person slips a drug into another’s drink without that person’s knowledge.). However, being so drunk that a defendant blacks out or becomes combative without intending to refuse a chemical test, is not a valid defense under California DUI law.



  1. If you are unable to complete a chemical test after making a good faith attempt, what will happen?

If a DUI suspect has been arrested, and for any reason can’t complete the test, the driver is required to complete another test. For example, often times a person really tries to provide a breath sample but just can’t blow hard or long enough for the machine to capture a sufficient sample.  Sometimes this will result in the breath machine stating “insufficient sample”. Even if the driver made a good faith effort, the failure to complete that test will require the driver to provide another test, depending upon what is available. Usually this means the driver will be offered and required to submit to a blood test. If you refuse to give blood, you can be accused of a refusal even though you tried to complete one of the tests. 

  1. One request by officer and one failure or refusal to complete a chemical test equals a refusal.

Under California’s refusal statute per VC 23612 and the Dunlap v. Department of Motor Vehicles case ((1984) 156 Cal.App.3d 279) an officer only has to ask you once to take a chemical test. If you refuse to do so, but later change your mind, the officer is not obligated to give you another chance. Of course, if there was confusion induced by the officer, then you may have a defense. Also, if the officer failed to properly admonish you about the consequences of refusing or failing to complete a test, then you may not be guilty of a refusal.

  1. The Right to Remain Silent and Implied Consent Requirement to Select and Complete a Test

After being arrested, the accused typically has the right to remain silent and not incriminate herself as explained in the seminal case Arizona v. Miranda (1966) 384 U.S. 436 16 L.Ed.2d 694.  However, under the California DUI implied Consent Law, you still must tell an officer which test you will take and then complete the test.  Even after arrest, you do not have the right to speak with an attorney prior to articulating to the officer which test you will take and taking the chemical test.

If you truly remain silent, this can constitute a refusal. This does NOT mean, however, that you must further incriminate yourself by divulging information regarding what alcoholic beverages you consumed, the times of consumption, or any other information concerning your drinking pattern or the events of the night.  You have a right to decline the filed sobriety tests (“FSTs”), and if you are not on probation or under the age of 21, you may also politely decline to take the preliminary alcohol screening test (“PAS”). 

Call DUI Lawyer Ann Gottesman to Discuss the Details of Your DUI Case. 

If you are facing a Pasadena DUI charge or DUI refusal charges, it is important you contact an experienced DUI lawyer as soon as possible. There are sensitive time limits regarding your right to request a DMV hearing to fight your DUI refusal. Having a good DUI lawyer can make the difference between losing your license for a mandatory minimum of one year (with no possible work or school restricted license options), and preserving your driving privileges.  Pasadena DUI refusal lawyer Ann Gottesman is here to help you and protect your constitutional rights and driving privileges. Ann is well respected in the local Pasadena and Los Angeles courts and she has a stellar track record for helping her clients achieve the best possible results in each case.

Call Pasadena DUI lawyer Ann Gottesman and personally speak to her about your DUI or criminal case.   

I provide free consultations and will fight to protect your license, your freedom and your reputation. I know it is frightening and stressful going through an arrest and facing criminal charges. I am here to make this process as painless as possible.  Call me any time, evening or weekends, for help with your DUI case.”

AVVO Rating

Pasadena Criminal Attorney AVVO Rating

5 Star Review

Yelp 5 Star Review

Free Consultation

* Required fields

















Pasadena Criminal Attorney

5.0 out of 5.0
Based on 60 reviews
Pasadena , CA