If law enforcement officers arrest you on suspicion of DUI, you could face additional criminal charges if you refuse to undergo a DUI chemical test. DUI charges coupled with a DUI refusal could attract enhanced punishment, like an enhanced jail term and a longer suspension of your driver's license. You do not have a right under California law to consult with an attorney before you refuse or consent to a breathalyzer test. However, you should hire a skilled DUI attorney if you face charges associated with a DUI arrest or refuse to undergo an alcohol screening test. Attorney Ann at the Law Office of Ann Gottesman is ready to help you navigate your DUI case with the DMV and the Court, and will work hard to achieve the best result possible. If you were arrested for a DUI in Pasadena, CA, or the surrounding Los Angeles or San Gabriel area, Call Ann for a free consultation.

‘’Implied Consent’’ DUI Law

If you drive and are lawfully arrested for DUI in California, you are presumed to have agreed to undergo chemical testing for drugs and blood alcohol concentration (BAC). This is referred to as the "implied consent" law. You could face serious legal repercussions if you refuse a post-arrest chemical test. A pre-arrest breath test, however, is different. That is optional and no one should voluntarily provide a test pre-arrest (unless you are under the age of 21 or on DUI probation).

Pre-arrest PAS Breath Tests

Once the traffic police detain you before an arrest, if they have reason to believe you were driving under the influence of alcohol and/or drugs, they can request that you undergo a preliminary alcohol screening test, abbreviated as the “PAS” test. You cannot face a penalty for refusing to undergo a PAS breath test unless you are on probation for a prior DUI conviction or under 21 years old. Sadly, rarely will law enforcement present it to you as a choice. The PAS test is usually just another field sobriety test (FST). A field sobriety test is just a tool to assist law enforcement in determining whether to arrest you. It is similar to other FSTs, like bringing your finger to your nose or walking along a straight line. In reality, the PAS test often times provides more evidence against you that the prosecution can use in court. That is why it is always better to reject all optional tests prior to the arrest and ONLY complete the one required test after arrest.

Refusal to take a PAS test cannot be admissible at trial as proof of guilt as long as you are at least 21 years old and not on DUI probation. On the other hand, if you consent to a PAS test, the outcome of the test can be used to charge you with a DUI. It is, therefore, advisable not to consent to a preliminary breath test unless you are on DUI probation or under the age of 21.

At times, law enforcement officers use an Evidential Portable Alcohol System (EPAS) to carry out post-arrest breath tests. The EPAS is based on the Draeger Alcotest device. Some police departments use this device for preliminary screenings. The EPAS can be hooked up to a printer by Bluetooth or hardline. However, when the police arrest you and order you to blow into a handheld device, (unless are required to take the PAS because you are under 21 years of age or you are currently on DUI probation in another case) you should request a DUI blood test.

Refusing a Chemical Test After a Lawful Arrest

According to the "implied consent" law, once you are arrested, you cannot refuse a DUI breath test without repercussions. This could happen even if you already consented to a preliminary alcohol screening (PAS) test. Previously to 2016, the law allowed the State to obtain a breath or blood test as a “search incident to a lawful arrest”. This law applied to both blood and breath tests and meant officers did not need to get a warrant or have consent to obtain a chemical test. In 2016, however, the Supreme Court of the United States issued the decision in Birchfield v. North Dakota (2016) 579 US. 438. Birchfield argued that it is unlawful for the state to make it an offense for a motorist to refuse a blood test without a lawful warrant. The Court held in Birchfield tha "The Fourth Amendment permits warrantlessbreathtests incident to arrests for drunk driving but not warrantlessbloodtests." The Birchfield decision affected the states, which made it a separate offense for a motorist to refuse a blood test following an arrest.

Vehicle Code 23578 allows the California criminal court to impose enhanced penalties for refusing a chemical test. We know the DMV issues a “hard” one to three year suspension if you fail or refuse to take a chemical test after being properly admonished under Vehicle Code section 23612. Although you technically have a “right to refuse, the government also has a right to suspend your license for a minimum of one year with no ability to get a restricted license. Refusal to take a test can also be used against you in court if you go to trial and can result in a 9-month DUI class being required by the court. It is usually better to take a breath or blood test if you are arrested because that way you will still be able to get a restricted license even if your BAC is over the limit.

Contesting The Refusal Allegation

To be a valid “refusal” under VC 23612 the officer must properly advise you of the consequences of refusing or failing to take a test after an arrest. Usually, officers will read the Chemical Test Refusal which is a page of warnings explaining you are required to take a test, you have no right to talk to an attorney at that time, refusal can be used against you in court, and failing to take the test will result in a suspension of your driving privileges for a minimum of one year. If you can’t complete one of the tests you must agree to the other. For example, if you are not able to successfully complete a breath test you must agree to a blood test. If the officer does not articulate all the important warnings, or he or she says you could or might face a suspension, this would not be a proper refusal. Your attorney could argue that you were not properly admonished. Therefore, the refusal is not valid and the suspension should be set aside. Cases such as Giomi v. Department of Motor Vehicles(1971) 15 Cal. App.3d 905, 906-907, ruled that an officer must tell the driver that his or her license will be or there is a very strong likelihood that their license will be suspended.

You have no legal right to refuse a DUI chemical test because you think the police arrested you wrongfully. The charges could ultimately be dismissed if your arrest or traffic stop was illegal. An unconstitutional stop could result in the Court suppressing key evidence that the prosecutor needs to convict you. If that evidence is suppressed there may not be sufficient evidence for the prosecution to proceed to trial. In the event of an illegal search, the DUI case could be dismissed even if the BAC test shows that you were under the influence of alcohol or drugs if the evidence was obtained in violation of the constitution. In such cases your attorney will need to file a motion to suppress the evidence under PC 1538.5. If you refuse a chemical test and the arrest was lawful then you will be facing a hard suspension from the DMV and possible a 9 month DUI class. Jail time is no longer one of the refusal enhancements.

Having a Choice on Which DUI Chemical Test to Take

Law enforcement officers must give you a choice of a DUI blood test or a DUI breath test when alcohol-based impairment is suspected. You can be offered a DUI urine test only if:

  • You have certain medical conditions
  • One or both of the other tests are unavailable
  • You have used drugs and have been unable to complete a blood test

Some of the situations that will require you to agree to another test other than the one you initially chose include:

Being Unable To Complete a DUI Chemical Test After Starting It

You could be allowed to take a different test if you cannot complete one for reasons beyond your control. For example:

  • Being unable to generate sufficient urine for a urinalysis
  • Being unable to produce enough volume of air for a breath test

However, it could amount to a chemical refusal if you willfully fail to complete a DUI chemical test, are offered to take a remaining test, and refuse this one as well. If this happens, the judge could instruct the jury to conclude that you refused the test because you had the knowledge that you would be found guilty of DUI (consciousness of guilt).

If You Are Severely Injured or Unconscious

Unfortunately, even if you are injured to some extent, you are not legally excused from a DUI chemical test. However, your refusal to take a chemical could be forgiven if you suffer a severe injury or are unconscious. For example, injuries such as head trauma can prevent you from giving meaningful consent. On the other hand, your DUI chemical test refusal cannot be excused if you were unable to provide meaningful consent because of consuming alcohol or drugs. Being drunk or highly impaired is not a defense.

If You Have a Medical Condition

Certain medical conditions could prevent or excuse you from undergoing specific DUI chemical tests. However, not all conditions will excuse you from a DUI breath or alcohol test requirement. You could refuse DUI blood testing if you are suffering from the following conditions:

  • A heart disorder for which you are consuming anticoagulants
  • Blood clotting disorder

Certain conditions could also cause a falsely increased BAC level on a DUI breath test. For example:

  • High-protein or Atkins-style low-carbohydrate foods can "trick" DUI breath test tools
  • Chronic heartburn, acid reflux, or GERD can produce falsely elevated BAC breath test results

If The Police Ordered You To Undergo a Different DUI Chemical Test Than The One You Requested

If you refuse to comply with the police's orders in any way, your actions could amount to a chemical test refusal. In this case, you have consented to DUI chemical testing according to the implied consent law. However, if the police neglected to offer you a choice, you can request a different test. If the testing officer fails to adhere to the testing procedures, you can contest the results later. You also have no right to refuse if the police direct you to undergo a specific DUI chemical test because others are not available.

If Your DUI Breath Test Results are Not Reliable

Law enforcement could ask you to submit to a DUI blood or urine test if they are convinced that your DUI breath test results are unreliable. This situation can occur if:

  • The breath-testing device aborts your DUI chemical test
  • The results are lower than expected leading to belief you are impaired by drugs
  • There is reasonable suspicion you are on alcohol and drugs, combined

The above could happen because of the following reasons:

  • If the DUI breath machine fails to work — If the equipment has a problem, the testing officer will look for another device or try again. You could also be ordered to submit to an alternative DUI chemical test if the equipment indeed fails to work and another device is available.
  • When the officer is mistaken—People sometimes forget that police officers are human beings. The police officer could genuinely believe you are driving under the influence, even if you are not. He/she could be expecting higher results.

Sometimes, the person carrying out the DUI chemical test could be tired. He/she can fail to realize that he/she has forgotten to do a section of the procedure. Irrespective of why the police order you to repeat or undergo a different test, failure to comply is a chemical test refusal. You can challenge the results if the procedure is flawed, but it is hard to contest a refusal of a DUI chemical test.

  • The testing officer has no sufficient knowledge of the chemical testing procedure — According to the DUI testing regulations, individuals carrying out breath and DUI blood tests must have proper training. Sadly, people do not adhere to this directive. You could be asked to submit to an alternative test if no qualified officer administers the DUI chemical test. Later, you or your attorney could contest the DUI chemical test results by alleging that the procedures were not followed.
  • The breath device detects alcohol in the mouth — Breath testing machines have internally programmed software, which aborts a test if the device detects "residual mouth alcohol." Usually, alcohol dissipates from the mouth in 15 to 20 minutes. This is why Title 17 of the California Code of Regulations requires a 15-minute observation before administering a DUI breath test. The officer must wait for 15 minutes and try the test again if the device aborts the breath test upon detecting mouth alcohol. You could take an alternative chemical test for DUI if a reliable reading can still not be obtained.
  • You are unable to produce enough volume of air — Breath devices are calibrated to base the readings for the DUI chemical test on deep lung air, which is the most reliable indicator of BAC. A minimum air volume is required to obtain sufficient deep lung air to report a valid result.

Individuals with lower lung capacity cannot produce this sample if subjected to a DUI chemical test. You should notify the testing officer if you have a reason to believe that you cannot blow sufficient air into the machine. Otherwise, the testing officer could assume you intentionally try to avoid blowing hard enough to produce the results.

If Your Preferred DUI Chemical Test Is Not Available

In rare cases, a DUI breath or blood test might not be available. For example, you could go to a hospital that does not have a DUI breath-testing machine when you need medical treatment. In this situation, you can choose the test available at that hospital.

If The Law Enforcement Suspects That You Are Under The Influence Of Drugs

You could initially have a choice of a DUI blood or breath test if law enforcement suspects that you are driving under the influence of drugs (DUID). However, you could also be required to submit to a DUI blood test, even if you choose a breath test. The arresting officer will determine if a DUI blood test is necessary. Law enforcement can also decide to seek the services of a drug recognition expert (DRE).

You could be ordered to undergo a blood test if law enforcement has a "clear indication" that it would reveal the presence of drugs. The following could be a "clear indication" that a DUI blood test would reveal your use of drugs:

  • Physical evidence like white powder around your nose, drug paraphernalia in your vehicle, prescription bottles in your purse, and the smell of marijuana in your vehicle
  • Objective symptoms of drug intoxication, like PAS test showing negative results for alcohol, blank stare, increased pulse or heart rate, constricted or dilated pupils
  • Your statements, like "I did a little meth, but not sufficient to get me high," "I snorted a little coke, but that was an hour ago," and "I only had one joint."

Being Coerced to Undergo a Chemical Test

Generally, the law does not allow law enforcement officers to force drivers to undergo a DUI chemical test without a warrant. If they do so, it will violate your rights under the Fourth Amendment to the United States Constitution. The Fourth Amendment gives people freedom and protects them against unlawful searches and seizures.

However, if law enforcement secures a warrant or there are "exigent circumstances" that allow their action without a warrant, they can draw your blood by force to perform a DUI blood test. Forced DUI blood draws were common until recently. The police did so because the blood alcohol percentage starts to diminish after you stop consuming. This usually happens because the body works to remove the alcohol from a person's system.

Fortunately, the U.S. Supreme Court recently ruled that an individual has a strong privacy interest in preventing the police from piercing any part of their body. Doing a forced blood draw for a DUI chemical test without a warrant is unlawful and a violation of a person’s Fourth Amendment Rights, even if alcohol dissipates faster in the blood. (SeeMissouri v McNeely(2013) 569 US 141.)

Most law enforcement agencies have since stopped carrying out forced blood draws in misdemeanor cases. However, if you are suspected of felony DUI and the warrant cannot be secured faster, law enforcement will forcibly draw your blood for a DUI chemical test.

A DUI could become a felony in the following ways:

  • If previously you have been convicted of a DUI
  • You have had more than three DUI or wet reckless charges within the last ten years
  • If your DUI caused death or injury to someone else

Situations That Amount To Refusal To Undergo DUI Test

Sometimes, refusing a DUI chemical test can appear straightforward, but that is not always the case. Certain circumstances can be deemed a refusal. The following are some of the situations you should be aware of:

Your Private Physician Is Not Welcomed During The Test

During the chemical test, your private physician is not welcome to observe or carry out the test. The trained law enforcement personnel are the only people allowed to do the test. It could also be an outside laboratory under Title 17 CCR regulations.

You Are Not Allowed To Reach Out To Your Attorney Before A DUI Chemical Test

You have a right to seek the services of an attorney after your arrest. However, you do not have this right concerning the chemical tests after your DUI arrest.

It Will Be Considered A Refusal If You Choose A DUI Chemical Test

Once arrested by the police, you have the right to remain silent. However, this Miranda warning only means you have a right not to incriminate yourself. It does not mean you can remain silent when asked what chemical test you will take. Your silence could be considered a DUI refusal if you are offered a choice of tests, and you fail to respond. However, in some cases, a driver could be genuinely confused if the officer provides Miranda Warnings and then demands the driver state which test he will take. If the officer causes the confusion, this may be a valid defense to present at the DMV hearing. This issue was addressed by a California appellate court in the Hoberman-Kelly v. Valverde case in 2013.case

Having Only One Chance to Submit to a Test

You have no right to change your mind if you refuse to take the first DUI chemical test. The law does not allow law enforcement to offer you a second chance.

The Punishment You Could Face For Refusing to Undergo a Chemical Test

You could face two possible penalties for refusing to undergo a post-arrest DUI breath or blood test. First, you could face enhanced penalties for your chemical test refusal if you eventually get convicted. Second, you could lose your driving privileges automatically for a minimum of one year with no option for a restricted license.

The Effect Of Chemical Test Refusal On DUI Criminal Penalties

You could face enhanced consequences if you go to trial and are convicted of a chemical test refusal and/or are found by the DMV to have refusal or failed to complete a chemical test pursuant to PC 23612. The enhanced penalties you could face include:

  • A nine-month DUI school instead of a three-month program for first-time DUIs, which do not involve refusals
  • The refusal could be used by the prosecution at trial to argue you refused the test because you knew you were guilty of a DUI
  • DMV imposes “hard” suspension period of one to thre years

The Impact Of Refusing a Chemical Test On a Criminal Case

Refusing a chemical test could have a positive impact on your criminal DUI case, even if a test refusal enhances your DUI penalties, but this depends on whether the DA has evidence of impairment. If you appear sober and not impaired to the degree of a DUI, then without a chemical test result the prosecutor will have a hard time proving their case. However, this situation tends to be rare and it is usually in a driver’s interest to take a chemical test (only if arrested) and fight the case later in court.

Defenses To DUI Test Refusal Charges

If the prosecutor accuses you of a DUI test refusal, you should hire a DUI defense attorney to help you create the best defense strategy against your charges. Some of the defenses you could present include the following:

You Have a Severe Medical Condition or Injury Unrelated To Drug or Alcohol

The law recognizes that, at times, you could fail to give meaningful consent or refuse to undergo a chemical test. For example, an injury or a medical condition could make you unable to decide on the type of test to undergo. Your refusal could be excused even if the incapacity results from the voluntary ingestion of drugs or alcohol.

Misleading ‘’Refusal Admonition’’

The law enforcement should unambiguously give the refusal admonition. Your refusal could be invalid if law enforcement does not do so.

The Police Failed to Admonish You On Your Duty to Submit To a DUI Chemical Test

According to the law, the police must advise on the repercussions of refusing to undergo a chemical test. It can be a fatal flaw in the DUI investigation if the police fail to do so. If this happens, the refusal charge could be dismissed in court and you may win the DMV hearing.

Find a DUI Defense Attorney Near Me

A DUI test refusal with no injury is usually filed as a misdemeanor DUI crime under California law. The consequences to one’s driver’s license can be severe. If law enforcement officers accuse you of DUI refusal, your first step should be to contact an experienced DUI attorney. You only have ten calendar days from the date of arrest to request a hearing to contest the refusal at the DMV! Attorney Ann at The Law Office Of Ann Gottesman can help you challenge your DUI refusal charges. She will fight your case in front of the DMV and in Court. Ann handles DUI cases in Pasadena, Alhambra, El Monte, West Covina, Los Angeles and surrounding courts. Contact Ann directly at 626-710-4021.