California is an “implied consent” state, which means that you may face consequences if you refuse to submit to a chemical breath test.
In California and in many states across the country, you give up certain rights when you drive. One of these rights is the ability to refuse to a chemical test of your blood alcohol content if you are lawfully arrested for suspicion of driving under the influence. If your refuse to take a chemical test, your license will automatically be suspended. Known as the “implied consent” law, this can have a serious impact on your ability to drive and on your DUI case.
Implied Consent Law
Under Vehicle Code 23612, drivers who are lawfully arrested on the suspicion of driving under the influence of alcohol or drugs have consented to having a chemical test of their blood or breath to determine their blood alcohol content (BAC). This test must be given at the time that you are arrested, with the officer giving you the choice between a blood or a breath test. Under a recent United States Supreme Court ruling, a warrant is required for a blood test, but not for a breath test. People with certain medical conditions, such as hemophilia, are exempt from taking a blood test.
This law requires that the police clearly advise you that a refusal will result in a suspension of your driver’s license. It does not require that the police make sure that you actually understand these consequences — just that the warning be given. If you do not understand this warning because you are too intoxicated, the court will usually still find that your refusal counts. An experienced Orange County DUI attorney can analyze the facts of your case to determine if the officer gave you the proper warning and if you were able to understand the warning.
Importantly, the implied consent law does NOT apply to pre-arrest BAC screenings if you are (1) 21 or older and (2) not on DUI probation. This means that if you are pulled over on suspicion of drunk driving, you do not have to provide a breath sample to the officer at the scene. You also do not have to perform field sobriety tests. It is only after you are arrested that a refusal to submit to a chemical test will have consequences. If you are under 21 or on DUI probation, a refusal to submit to a pre-arrest breath screening can result in significant consequences, including revocation of your probation or license suspension.
Consequences of a Refusal
If you refuse to take a chemical test after being arrested for a DUI, you will face some pretty significant consequences. If it is your first DUI offense, your license will automatically be suspended for a period of one year. If it is your second refusal or second DUI conviction within the past 10 years, you will lose your license for two years. If it is your third refusal or if you have had two or more DUI convictions within the past 10 years, you will lose your license for a period of three years. In addition, you will pay a $125 fine on top of the fines and penalties associated with a DUI conviction. You may also be subject to enhanced DUI sentencing, including additional jail time and DUI classes.
Is There Any Benefit to Refusing a Chemical Test?
As a general matter, it is not helpful to refuse to take a chemical test. The prosecutor can still introduce evidence of your intoxication in court, such as the testimony of the officers who arrested you about the way that you drove, an odor of alcohol, or slurred vision and bloodshot eyes. The prosecutor may also argue that you refused to take the chemical test because you knew that you were intoxicated and that the test would show a high BAC. More importantly, if you refuse to take a chemical test, the prosecutor can ask for enhanced DUI sentencing on top of the penalties for the DUI conviction. On the other hand, if the evidence that you were driving under the influence is weak, your attorney may be able to secure a reduction or dismissal of the charges if there is not a chemical test showing your level of intoxication. The bottom line is that refusing to take a chemical test will not guarantee an acquittal — but it will result in an automatic suspension of your driver’s license for at least a year, regardless of whether or not you are convicted of the DUI.
At the Chambers Law Firm, we have substantial experience handling DUI cases. We will evaluate the facts of your case to determine the best possible defense to your DUI charge, including how to handle a refusal to submit to a chemical test. If you need an Orange County DUI attorney, contact us today at 714-760-4088 or dchambers@clfca.com to schedule a free initial consultation.
