Consequence for Refusals in California
Motorists arrested on suspicion of DUI or Driving Under the Influence of Drugs (DUID) in California are required to submit to a chemical test under the state's implied consent law. The implied consent law, California Vehicle Code VC 23612 - Implied Consent For Chemical Testing, makes it a requirement for a driver to consent to a chemical test if they are arrested for driving under the influence of alcohol or drugs. A driver who refuses a chemical test after a drunk driving arrest faces serious repercussions at the California DMV. A skilled San Francisco DUI attorney will develop a strategy to fight the charges and keep repercussions to a minimum.
Driving Under the Influence (DUI) arrests trigger two different cases - in criminal court and at the California Department of Motor Vehicles. Refusing a chemical test adversely affects both cases. California DMV hearing is by far the most time-sensitive matter - drivers have only 10 calendar days to request a California DMV Administrative Per Se (APS) hearing. If no hearing is requested, the DMV will begin the process of automatically suspending a driver's license, and a hearing likely will never be granted. With the help of a California DUI criminal defense attorney with experience in DUI and DMV cases, consequences of these hearings may be limited.
To suspend a license at an Administrative Per Se (APS) hearing, the California DMV hearing officer must prove three facts - that the police officer had a reasonable belief that a crime was committed, that the arrest was lawful, and that the driver had a BAC of .08 percent or greater while driving. While drivers believe they have an advantage by refusing a chemical test, because there is no evidence of blood alcohol content (BAC) at the California DMV hearing or at DUI criminal trial, they face additional punishment. An attorney with an expertise in DUI and California DMV cases, will investigate in order to determine whether a refusal actually took place.
If the Department of Motor Vehicles establishes that a driver refused a chemical test, the motorist will receive a lengthy license suspension - one (1) year for a first refusal, two (2) years for a second refusal, three (3) years for a third refusal, and four (4) years for a fourth refusal. And unlike drivers who submit to chemical tests, motorists who refuse will not receive a restricted license to drive to work.
Although most lawyers advise drivers to take a chemical test, not all comply. The good news is that refusals can be successfully challenged. There are really two kinds of refusals, express refusals - the person saying no - and implied refusals, where the police say a refusal occurred but the person did not expressly refuse. Sometimes police indicate that a driver refused a chemical test when that's not exactly the case.
It is best to have a California criminal defense attorney with experience defending DUI and DMV cases on your side if you want to minimize the consequences against your license. Seek a free case evaluation from San Francisco DUI Lawyers and Drunk Driving Defense Attorneys of The Law Office of Robert Tayac, if you want to fight the Department of Motor Vehicles and protect your driving privileges.
Implied refusals can sometimes be excused. For example, if a person arrested for Driving Under the Influence (DUI) opts for a breath test but is unable to provide a sufficient sample, police officers often record this as a refusal, assuming the person is purposefully not cooperating. However, the driver may be sick or injured, or the breath machine may have malfunctioned. 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.
In other cases a driver refuses a breath test but police draw the person's blood by force. If the motorist does not object to the draw - even though technically there is no permission either - there is no refusal. If the police officer had honored the initial refusal and not done the forced blood draw, the refusal would have been valid. When the officer takes blood anyhow, the refusal is lost.
Some drivers are unconscious or otherwise physically unable to either refuse or consent because of medical problems. California courts have ruled that a driver who is semiconscious cannot be punished for a refusal if the loss of consciousness stems from a medical condition that is not related to alcohol or drug use.
Additionally, if the officer failed to advise the driver of the implied consent law and the consequences of a refusal, it cannot be used against them.
Refusals can be severely punished by the California DMV, but the action can be successfully challenged. An experienced Northern California DUI criminal defense attorney will evaluate the circumstances surrounding a driver's refusal, and crafta strategy to defend both the criminal court case and the California DMV hearing.
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