In California, drivers arrested on suspicion of Driving Under the Influence (DUI), or Driving While Intoxicated (DWI) must submit a chemical testing for alcohol content. This is what is known as "Implied Consent Law" (California V.C. Section 23612 - Implied Consent For Chemical Testing). A driver who refuses to take a chemical test faces serious consequences from the California DMV (California V.C. Section 13353 - Refusal of Chemical Test) and DUI criminal court.
Case law indicates that a refusal to be anything other than absolute assent to the test. However, there are actually two kinds of refusals: Express refusals - where the driver says no - and implied refusals, where the police say a refusal occurred but the person did not verbally refuse. An experienced California DUI defense attorney can evaluate each case to determine whether an implied refusal might be excused.
Some implied refusals can be excused. For example, if a person arrested for a DUI opts for a breath test but is unable to provide a sufficient sample, police often record this as a refusal, assuming the person is purposefully refusing to comply. However, the driver may be sick or injured and unable to provide a sufficient sample, or the breath machine may not be working properly. In this situation, if a police officer does not allow a person who chose a breath test to take a blood test instead, and records it as a refusal, this refusal may be excused.
Another example involves a driver who refuses to take a breath test, and the police officer then draws the person's blood. If the person does not object to the draw (even though technically there is no permission either), a refusal does not exist. If the officer had honored the initial refusal and not done the forced blood draw, there would have been a refusal. However, if the officer chooses not to honor the refusal and takes blood anyhow, the refusal is lost.
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In some cases, the driver arrested for driving under the influence (DUI) is physically unable to refuse or consent, or is in and out of consciousness. California courts have determined that a driver who is semiconscious should not be deemed to have refused due to a medical condition that is unrelated to alcohol use.
A motorist arrested on suspicion of drunk driving who is not advised of the consequences of refusal, namely that the driver's license will be suspended or revoked, or who isn't told about the implied consent law, may not suffer the repercussions of a refusal.
If police fail to warn the driver of the consequences of a refusal, the motorist may also have a valid defense at a California DMV hearing to determine whether the driver's license should be suspended.
Refusal to submit to a chemical test after a lawful drunk driving arrest is a serious charge with heavy penalties. However, if police make the faulty assumption that the driver refused a chemical test, an implied refusal may be successfully challenged by California criminal defense attorney experienced in handling DUI and California DMV cases.
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