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Refusing to Submit to Chemical or Breath Test

Los Angeles DUI Breath Test Refusal Lawyer

There are various kinds of consequences for refusing to submit to police testing for DUI. But the outcomes vary, depending on the kind of test, when the test was administered, and how the refusal was established. Matthew Barhoma, founder of Power Trial Lawyers, provides a breakdown for how a refusal to submit to officer examination in a DUI may impact you.

In California, there is an “implied consent” statute that provides the types of punishment for refusal of an individual to submit to blood-alcohol testing when arrested on suspicion of driving under the influence of alcohol or drugs.

Generally, if you refused to submit to a blood-alcohol test, your license will be immediately confiscated by the officer, pursuant to the administrative per se (ASP) law. The refusal will constitute an “enhancement,” which is really just an “aggravation,” for the criminal sentencing. This could be used against you if your case goes to trial.

Vehicle Code § 23577 provides for a sliding scale of penalties in cases that involve misdemeanor DUI or DUI with injury. The scale moves depending on how many prior convictions you have plead guilty to or have been proven guilty of. But it is important to note that the range of “aggravations” or “enhancements” calls for additional punishment of 48 hours to 18 days, depending on which law the court uses to sentence you.

Vehicle Code § 23612 and Vehicle Code § 13353

“Any person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath”. (Vehicle Code § 23612). That means that if you drive on a California road, you have implicitly consented to this search. Refusing it has consequences. What those consequences are varies, depending on your situation and background.

If for some reason a blood or breath test is unavailable, the law will even allow for a urinalysis. The statute then goes on to detail the procedures to be followed by the officer making the arrest. It is common that officers get this part wrong. And if they do, a Power Trial Lawyers, attorney will look to determine how to dismiss the charge. If that is not possible, the next thing our attorney will look to do is challenge the admissibility of the evidence and reduce the penalties you are facing to as minimal as possible.

If an individual refuses to submit to the post-arrest testing, then Vehicle Code § 13353 comes into play. The law says that “if any person refuses the officers’ request to submit to, or fails to complete, a chemical test . . . the department shall (1) suspend the person’s privileges to operate a motor vehicle for a period of one year.

This is automatic. Meaning, if you simply refuse a chemical test, or any test outlined in Vehicle Code § 23612, the Department of Motored Vehicle (DMV) is instructed, by law, to suspend your license for one year.

This suspension is increased to two years if you have a previous conviction for a wet reckless, drunk driving, or felony drunk driving within the past 10 years, or vehicular manslaughter while intoxicated. If you have more than one prior DUI convictions or pleas, then that suspension is aggravated to three years.

The DMV Hearing: Procedures to Be Followed in a Refusal Case

There are four procedures to be followed in a refusal case:

  1. Did the officer have “reasonable cause?”
  2. Was the person lawfully placed under arrest?
  3. Was the person properly advised of the consequences of refusing?
  4. Did the person refuse to submit to or fail to complete the test?
1. “Reasonable Cause” to Administer the Test

The first requirement looks to determine whether the officer had “reasonable cause” to believe the person had been driving under the influence. This means the police must follow the procedural safeguards pursuant to the Fourth Amendment in place against unlawful searches or seizures. If the officer violates your Constitutional rights, then a Power Trial Lawyers, attorney will look to challenge the validity of the arrest, and therefore, the evidence against you. If an officer cannot be trusted in this process, nothing can be trusted, including your arrest and charge.

It is important to note, however, a determination by the court that the arrest was without probable cause is not binding on the DMV. As such, there still may be administrative consequences to the arrest. If this is the case, an experienced DUI lawyer with Power Trial Lawyers, will look to reinstate your license and protect your driving and criminal record.

2. Were You Lawfully Placed Under Arrest?

Whether you were lawfully placed under arrest is the second important element. The usual issue here is whether an arrest for misdemeanor drunk driving was lawful when the officer did not observe you. The law is clear on this: an officer can “arrest a person . . . whenever he has reasonable cause to believe that the person arrested has committed a public offense in his presence” (Penal Code § 836). This rule is expanded however by Vehicle Code § 40300.5, which states that in limited situations, the officer can infer it where there was an accident or a vehicle is obstructing traffic.

Therefore, unlawful arrests most commonly surface in DUI cases where the officer did not actually see you driving and an accident or obstruction of traffic is not involved. If this is the case for you, a Power Trial Lawyers, lawyer will dismiss any consequences or suspension for refusing chemical testing. Usually, the officer is tipped off by an informant of your alleged erratic driving. However, even then, it does not meet the criteria required by the law to suspend your license. If you fall in this special category, immediately contact an experienced refusal of DUI breath test attorney.

Even more, case law supports this notion—in Mercer v. Department of Motor Vehicles, the court held that in order for the misdemeanor offense of drunk driving to be committed in the officer’s “presence,” some volitional movement of the vehicle must be perceived by the senses of the arresting officer.

3. Were You Advised of Your Rights?

The arresting officer must warn you of the consequences, pursuant to Vehicle Code § 23612. If the officer fails to advise you of the fact that your driving privileges will be suspended or revoked if you refuse to submit (or fail to complete) the testing, then the license cannot be suspended or revoked despite a subsequent refusal.

Just as there are Fourth Amendment safeguards intended to protect you, pursuant to the United States Constitution, there are also Fifth Amendment safeguards intended to protect you against self incrimination. One of the requirements of the Fifth Amendment applies when you are getting arrested. The Supreme Court has held that officers must issue you your Miranda rights. On this topic, as it applies to DUIs, there is a further mandate in California for officers under Vehicle Code § 23612.

However, it is important to note that while the Miranda warning instructs you that you have the right to an attorney, Vehicle Code § 23612 indicates you do NOT have the right to an attorney during the chemical testing. As such, the officer or the hospital staff administering the test do not need to call your attorney or provide you with a state appointed attorney, if you cannot afford an attorney.

4. Did You “Refuse” or Fail to Submit to the Test?

As previously stated, there is implied consent to the test by nature of driving on California roads. Unfortunately, when it comes to this element, the cards are stacked against you. Lawmakers have made it easy for the officer to muster up the reasonable suspicion to warrant giving the test to any individual the officer may feel is driving intoxicated. If you find yourself in a refusal setting, immediately contact an experienced Los Angeles DUI attorney to help protect your rights. Time is of the essence on this. Do not delay in connecting with an attorney.


California police officers must inform DUI arrestees of the following five items:

  1. You may elect to take a breath or blood test. But if you choose a breath test, you will also have to take a blood test if the officer suspects you of drug intoxication;
  2. You are not entitled to an attorney before or during the chemical testing;
  3. Refusing to submit to a chemical test may be used against you in court;
  4. If you get convicted of DUI, refusing the chemical test will result in fines and mandatory jail; and
  5. Refusing the chemical test will result in a driver’s license suspension. How long the suspension is, depends on the following:
Number of Prior DUI Within the Last 10 YearsLength of License Suspension/Revocation for Refusing Chemical Testing
0 Prior DUIs1 Year Suspension
1 Prior DUI Conviction/Plea2 Year Suspension
2 or More Prior DUI Convictions/Plea3 Year Suspension

If you find yourself in a refusal setting, immediately contact a Los Angeles breath test refusal lawyer. Power Trial Lawyers‘s, attorneys often negotiate on behalf of their clients for better outcomes. Further, Power Trial Lawyers, attorneys go through every phase of the arrest to determine if it was made legally. If there was an illegal arrest in your case, or improper testing procedures, Power Trial Lawyers, lawyers will challenge the arrest, test, and overall charge. The only thing better than a reduction of consequences is an outright dismissal of your illegal charge. Contact our law firm right away at (213) 800-7664 or online.

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