When a California DUI suspect refuses to take a chemical test, both the DUI defendant and the prosecution are presented with challenges and opportunities.
California has a law called the informed consent law of chemical testing. What this means is that when you got your drivers license, you agreed (although you probably did not realize it at the time) that in exchange for the state giving you your drivers license, you agreed to submit to a chemical test. This law means that the state does not need a warrant or other court order to have you submit to a chemical test.
If a DUI suspect is arrested and after arrest is given the opportunity to take a chemical test such as a breath, blood, or urine test, and refuses to take any chemical test, the DUI suspect will be charged with an additional crime of refusing a chemical test.
The DUI suspect who refuses to take a chemical test gains some advantages by refusing. The prosecution does not have a blood level number to rely upon and has the more difficult job of proving impairment as defined in California's jury instructions. However, this is of limited value.
Many DUI defendants are charged with refusal because at the time they were asked to take a chemical test, the DUI defendant believed that they had the right to speak to a DUI lawyer or California DUI lawyer. While this may be the law in some states, it is not the law in California. This mistaken belief has lead to many refusal cases.
In many DUI cases, the defendant agrees to take the voluntary field sobriety tests while refusing to take the mandatory chemical test. What this means is that in many refusal cases, the prosecutor still has evidence of impairment through the officer's testimony about the DUI suspects performance on the field sobriety tests.
Another common error DUI defendants make is to assume that by submitting to the preliminary alcohol screening (PAS) test, that they have satisfied their obligation to give a chemical test. In some cases, under the right facts, this can be a winning argument. However, in most cases, the refusal will still be charged.
Prosecutors and judges can be very hostile towards a DUI defendant who has refused a chemical test. This hostility can be expressed in increased jail time and extended alcohol education programs.
If the DUI defendant decides to go to trial and is found innocent of the charge of driving while intoxicated, than the defendant can't be found guilty of refusing a chemical test.
During the trial, the California DUI attorney will given an instruction that the act of the DUI defendant refusing to take a chemical test is evidence that the DUI defendant was conscious of his own guilt of the charge of DUI. In some cases and before some jurors, this can pose a significant challenge.
Given the challenges and risks to both the prosecution and defense, many refusal cases are settled with some charge to the defendant. In cases where the facts on impairment have been favorable or there have been other defects in the prosecution's case, I have been able to obtain reductions to wet and dry reckless with a dismissal of the refusal allegation.
It should be emphasized that persons under the age of 21 face very severe penalties for refusing a breath test.
This article is not meant to advise anyone to refuse to submit to a chemical test. I advise almost everyone that it is in their interests to submit to a chemical test. This article is also not a warranty of a result in your case. All cases are different.
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