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What is a Refusal?
An arrest for DUI can be complicated if you have refused to provide a sample of either your breath or your blood for alcohol testing. In return for obtaining a driver’s license, you agree to provide blood or breath for testing in accordance with the “implied consent” law. A refusal will have serious consequences with the DMV and criminal case.
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. A experienced California drunk driving defense lawyer can evaluate each case to determine whether an implied refusal might be excused.
Implied refusals can occur in a variety of ways. If a person arrested for driving under the influence chooses to take a breath test, but then is unable to provide a sufficient sample of breath to allow for a reading, police officers often record this as a refusal, assuming the person is purposefully blocking the mouthpiece or not blowing hard enough. Often, the person may be sick or injured and unable to provide a sufficient sample, or the breath machine may be faulty. 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. California courts have determined that a driver who is semiconscious should not be deemed to have refused due to a medical condition that is not related to alcohol use.
Another example exists when a person 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 police officer had honored the initial refusal and not done the forced blood draw, a refusal would have existed. However, when the officer chose not to honor the refusal and took blood anyhow, there is no refusal.
If someone is charged with drunk driving, and they aren't properly told of the consequences of refusal by the police officer, namely that their driver's license will be suspended or revoked, or if the officer fails to advise the person of the implied consent law (in jurisdictions where this is required, such as California), the refusal may not be used against them.
Refusing a chemical test can lead to consequences at the DMV or during a criminal proceeding. However, if police make the faulty assumption that the driver refused a chemical test, the refusal can often be successfully challenged by an attorney who specializes in DUI / DWI cases.
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. A experienced California drunk driving defense lawyer can evaluate each case to determine whether an implied refusal might be excused.
Implied refusals can occur in a variety of ways. If a person arrested for driving under the influence chooses to take a breath test, but then is unable to provide a sufficient sample of breath to allow for a reading, police officers often record this as a refusal, assuming the person is purposefully blocking the mouthpiece or not blowing hard enough. Often, the person may be sick or injured and unable to provide a sufficient sample, or the breath machine may be faulty. 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. California courts have determined that a driver who is semiconscious should not be deemed to have refused due to a medical condition that is not related to alcohol use.
Another example exists when a person 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 police officer had honored the initial refusal and not done the forced blood draw, a refusal would have existed. However, when the officer chose not to honor the refusal and took blood anyhow, there is no refusal.
If someone is charged with drunk driving, and they aren't properly told of the consequences of refusal by the police officer, namely that their driver's license will be suspended or revoked, or if the officer fails to advise the person of the implied consent law (in jurisdictions where this is required, such as California), the refusal may not be used against them.
Refusing a chemical test can lead to consequences at the DMV or during a criminal proceeding. However, if police make the faulty assumption that the driver refused a chemical test, the refusal can often be successfully challenged by an attorney who specializes in DUI / DWI cases.
Case Results
1st offense DUI in North Court (Fullerton) – Client had a BAC of .10 reduced...
1st offense DUI Under 21 BAC 0.16 Harbor Court (Newport Beach) – Client was in the Fire Academy and facing both DMV and criminal charges...
3 arrests for DUI in a 3 month span. All cases out of Orange County...
Felony Case Results.... Read More
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