Arrested for DUI – Who Must Take a Blood or Breath Test?
California Vehicle Code Section 23612 spells out a driver’s obligation to take a blood or breath test after the driver has been lawfully arrested for DUI. This law states that any person who drives a motor vehicle has consented to such a test after being arrested for DUI. A driver does not have the right to consult with their Orange County DUI lawyer before agreeing to take a blood or breath test. A person arrested for driving under the influence of alcohol only must submit to either a blood or a breath test. But, if the officer has grounds to believe that the driver is also under the influence of drugs, whether prescribed or illegal, then the driver must submit to a test of their blood.
Consequences of Refusing a DUI Blood or Breath Test
It is commonly known that refusing to take the required chemical test (blood or breath test) will have severe consequences, such as a much longer driver’s license suspension and mandatory jail time. For example, in the case of a first-offense DUI, the typical DUI driver’s license suspension is 30 days, followed by a period of “restricted driving” where the driver can drive to and from the mandatory alcohol program and do any work related driving. But if the driver refused to take a blood or breath test after being lawfully arrested for DUI, then there is a mandatory one-year suspension of their driver’s license and a mandatory 48 hour stay in the Orange County jail.
If the driver has prior DUI convictions within the past ten years, the driver will face a longer period of mandatory jail, which will be added to the jail time imposed for the new DUI charge. The more prior DUI or refusal charges the driver has, the longer the jail time and driver’s license suspension.
What Constitutes A Refusal?
What exactly constitutes a “refusal” is tricky and even some Mission Viejo DUI lawyers aren’t familiar with the fine nuances of this area. But it is fair to say that the law is quite strict and unforgiving on the driver who doesn’t immediately comply with the obligation to test. As a rule, once the officer advises the driver of the obligation to take the test, the officer need only ask the driver ONE TIME to choose a breath or blood test. If the driver does or says anything that can be construed as a refusal, including not answering the officer, the driver can then be charged with a refusal. Even in cases where the driver changes his or her mind and agrees to take the test, they can still be charged with a refusal.
Moreover, refusing to take a DUI breath or blood test will not keep the police from taking your blood anyway. When a driver arrested for DUI refuses a test in Orange County, the officer will simply call a judge and get a warrant to draw the driver’s blood. This is called a “forced blood draw” and the police will literally restrain the driver, if necessary, while a blood technician takes a blood sample. Thus, the Orange County District Attorney will have evidence of the driver’s blood-alcohol level and will still charge the driver with a refusal. That’s right. The fact that they get your blood does NOT erase the refusal. The driver’s Huntington Beach DUI attorney will have to defend against a DUI and a refusal charge.
Defenses to a Refusal Charge
Because case law has deemed anything short of a “yes” response a refusal, the charge is very difficult to defend. However, there are some defenses. First, the refusal only applies if the arrest was lawful. So if your San Juan Capistrano DUI attorney can cast doubt on the legality of the stop in the first place, the DA may dismiss the refusal allegation. If your DUI lawyer has a good shot at winning the argument, the DA may even reduce the DUI charge to a “wet reckless” which requires no jail time and avoids a DUI conviction altogether.
Also, where the driver is confused about his or her obligation to take a chemical test AND the confusion is induced by the police officer, then there is no refusal. In the case of McDonnell v. Department of Motor Vehicles, (1975) 45 Cal.App.3d 653, a driver was arrested for DUI. The arresting officer read the driver his Miranda rights and told him that he had the right to speak to an attorney. Then, right after reading the driver these rights, the police officer advised the driver of his obligation to take a breath or blood test.
The driver understandably thought he had the right to consult with his Fountain Valley DUI attorney before deciding. The driver was arrested for DUI and was also charged with a refusal. The driver appealed the DMV’s finding that he had “refused”. The court agreed with the driver finding that the driver was understandably confused about his obligation to take a blood or breath test under the implied consent law and that the confusion was caused by the officer.
Another exception applies where the driver sustains a head injury in an accident and is then instructed by the police of his obligation. In Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d. 752, the officer came upon a driver who had been in an accident. When the officer detected the odor of alcohol on him, the officer arrested him for DUI. The driver became combative and several officers were needed to subdue him. The driver refused to take any test and refused any sort of cooperation. The driver’s Irvine DUI attorney successfully argued that although the driver was “conscious” and appeared to be relatively uninjured, he had suffered a traumatic brain injury and could not be held accountable for his actions.
Free Telephonic Consultation with an Orange County DUI Attorney
If you have been arrested for DUI, call The Law Office of EJ Stopyro at (949)559-5500 today. We offer a free and confidential telephonic consultation with an experienced DUI lawyer. EJ will be happy to explain your options. Our main office is at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675.