Driving under the influence of drugs or alcohol can be dangerous. California’s implied consent law aims to protect the public by facilitating the enforcement of the state’s DUI laws by law enforcement officers.
Many drivers are unaware of the implications of the implied consent law and refuse a chemical test without understanding the consequences. The better you understand how California’s implied consent law affects your rights, the better decisions you will make if pulled over or arrested.
Implied Consent Law in California
California’s implied consent law is in the California Vehicle Code. Under the law, drivers consent to abide by the implied consent law the moment they get a California driver’s license. Out-of-state drivers are also subject to this law and may be required to undergo blood or breath tests while driving in California.
Can you refuse a blood test for DUI in California? Under California’s implied consent laws, you agree to consent to chemical testing when a police officer suspects that you are driving under the influence of drugs or alcohol.
However, this doesn’t mean that you have a legal obligation to submit to chemical testing. Instead, it means that if you refuse a blood or breath test, the state can suspend your driver’s license, assign additional criminal penalties, and potentially use your refusal as evidence against you when prosecuting a DUI offense.
Types of Chemical Tests
There are three types of chemical tests. When a police officer requires you to take a chemical test, typically, you may choose between a blood or breath test. However, if there are medical reasons that you can’t safely take those tests or those tests aren’t available, you may choose to take a urine test instead.
Breath Test
A breath test is the only type of chemical test that officers can administer at a traffic stop. This test uses a breathalyzer to determine your approximate blood alcohol concentration (BAC). Breathalyzer tests are typically the least reliable type of chemical test and may struggle to detect drug intoxication.
Blood Test
When you get a blood test, a phlebotomist draws blood, and a laboratory uses that blood to analyze your blood for blood alcohol concentration. Some methods of blood alcohol analysis are reliable, while others are largely recognized as unreliable.
Urine Test
Urine tests are reserved for situations where the other types of tests are unavailable or medically unsafe. A urine test offers roughly the same benefits and drawbacks for measuring blood alcohol content as a blood test, but it is slightly less invasive.
Refusing a Blood Test
Can you refuse a blood test for DUI in California? You have the right to refuse a blood test, but if you are lawfully arrested and admonished of the consequences of refusing chemical testing, your license can be suspended for up to three years if you also refuse a breath test. Law enforcement officers are required to advise you that chemical test refusal can result in license suspension or increased penalties if you are convicted of DUI charges.
If you don’t consent to chemical testing, you can still be arrested for drunk driving if the arresting officer has probable cause for other reasons. Furthermore, there are consequences of refusing a blood test that may come back to haunt you later.
Do You Have the Right to Consult With an Attorney Before a Chemical Test?
You may wish to consult with a DUI attorney before choosing whether to consent to chemical testing or not. Unfortunately, you don’t have the right to consult a lawyer before making this decision under California state law, though we are working to change that.
The right to be represented by legal counsel is granted by the Sixth Amendment of the Constitution. This amendment guarantees the rights of criminal defendants to be represented by a lawyer at all critical stages of a criminal proceeding.
No court in California has found the decision of whether or not to submit to a chemical test to be a critical stage as of yet. Thus, you must agree to or refuse a DUI chemical test without the opportunity to consult with a lawyer.
However, the moment you are arrested, possibly after blood or breath testing, you should advise the arresting officer that you wish to speak with a DUI lawyer. The police cannot refuse that request after a DUI arrest.
Penalties for Refusing a Blood Test During a DUI Arrest
The penalties for chemical test refusal are twofold. First, you will face a potential administrative suspension of your driver’s license. This license suspension occurs even if you are not convicted of a DUI or if the courts drop the charges against you.
The duration of this license suspension depends on how many times in the past 10 years you have had your license suspended for DUI, been convicted of DUI, or been administratively determined to have refused chemical testing.
- First Refusal: 1-year license suspension
- Second Refusal: 2-year license suspension
- Third Refusal: 3-year license suspension
Furthermore, the California Vehicle Code imposes additional punishments for anyone convicted of DUI charges after a chemical test refusal.
For a first-offense DUI, your sentence will increase by two days in county jail. For a second DUI conviction, you will be sentenced to four extra days in county jail. You will be sentenced to 10 additional days in county jail if convicted of a third offense. And, for a fourth or subsequent DUI offense, you will receive 18 extra days in county jail.
Defenses Against Refusal DMV Suspensions
As mentioned above, if you are arrested for DUI and the officer alleges that you refused to submit to chemical testing of your blood and breath, you will need to defend yourself against a harsh license suspension. There are restricted license options available if you suffer an administrative suspension for refusing chemical testing. Not even to drive to work. As such, building a strong defense to a DMV DUI refusal hearing is important.
The best defenses against a DMV DUI refusal hearing are as follows:
- The arresting officer did not advise you that your license would be suspended. An officer is required to inform you in certain terms that a license suspension will occur. An officer cannot tell a driver that a suspension “may,” “could,” “might,” or other similar language.
- The arresting officer did not advise you of the suspension term. If an officer simply informs the drivers that their license will be suspended, but does not explain the length, then this is not a proper admonishment.
- You did not refuse a breath and blood test. Often, officers fail to give people arrested for DUI the option to submit to either a breath or blood test. Even if you are arrested for a drug DUI, you have the option to first submit to a breath test before a blood test. If an officer does not offer you the option to submit to both a breath and blood test, then that is a defense to a refusal suspension.
- You were not lawfully arrested.
- Due to some type of injury, you could not understand the consequences of refusal. This typically requires the presentation of medical records and expert witness testimony.
Defenses Against Refusal Enhancements
While the potential license suspension from a chemical test refusal is an administrative penalty, you do have the right to present a legal defense against that penalty. You can request an administrative hearing to contest your license suspension. Additionally, you have the right to be represented by a DUI attorney during this DMV hearing.
The strongest legal defense against refusal enhancements is that it is unconstitutional to punish someone for exercising their Fourth Amendment right against submitting to a warrantless search. If an officer demands that a driver submit to a breath and blood test without a warrant, refusing to submit to it is a Fourth Amendment right and should not be punishable.
Another legal defense that your lawyer might present is that the officer never advised you of the consequences of refusing a blood or breath test. You have the right to make an informed decision before refusing a chemical test.
When Can the Police Force a Blood Draw?
In certain situations, police can force you to take a blood test. However, a forced blood draw is not allowed under the implied consent laws.
In 2016, the Supreme Court determined that the state may not make it a criminal offense to refuse a blood test unless it has a lawful warrant to take your blood. Thus, there are only three situations where police can forcefully draw blood from you for a blood test.
The Police Have a Warrant
After you are lawfully arrested, the police can petition the court for a warrant to draw your blood, regardless of your consent. If the police officer can’t get a judge to sign a warrant, then only under certain circumstances can the police still draw your blood.
You Are Suspected of Committing a California Felony DUI
There are several types of DUI offenses. You are guilty of a felony DUI if you are driving under the influence and:
- Your driving causes an injury
- You have three or more previous DUI convictions within the past 10 years
- Do you have any prior felony DUI convictions
When an officer suspects that you are guilty of a felony DUI, they can forcibly draw your blood, even if they can’t obtain a warrant.
You Are Suspected of Committing a DUID
If the officer who pulls you over has a clear indication that you are driving under the influence of drugs, they typically will demand a blood test. An officer can only claim this right if you state that you were using drugs, show objective symptoms of drug intoxication, or there is physical evidence that you were using drugs.
What Are the Procedures for Forced Blood Draws?
Before you are subjected to a forced blood draw, law enforcement officers will ask you to voluntarily submit to a blood test. A medical professional will obtain a blood sample through venipuncture.
The officers on the scene are required to use the minimum amount of force necessary to get the sample. Typically, police will record every step of the process, including your chemical test refusal.
Seeking Legal Counsel
The consequences of refusing a chemical test are driver’s license suspension and potentially extra time spent in a county jail. These are significant penalties that could have a devastating impact on your life and livelihood. An experienced DUI lawyer may be able to help you avoid the driver’s license suspension that comes from violating implied consent laws in California.
To protect yourself, you should contact legal counsel as soon as possible after being lawfully arrested. Law enforcement may try to convince you to consent to additional chemical tests after a DUI arrest. You have the right to refuse to talk to law enforcement officers until you have spoken with your lawyer.
Don’t wait after a DUI arrest. Contact an experienced attorney right away and refuse to speak to law enforcement until your attorney is present.
What to Expect After Refusing a Chemical Test
What happens after a chemical test depends on the circumstances of that test. Pre-arrest breath tests can potentially give law enforcement officers enough evidence to perform a lawful arrest for DUI charges. However, if you pass a DUI breath test, the officer might have a hard time justifying an arrest, resulting in them letting you go.
If you have been arrested, however, you will be caught up in the legal system. Blood test results won’t be available immediately. While waiting for the test, you will be processed for driving under the influence. This means you will be brought before a judge, who will determine when your initial hearing will occur and what bail conditions to impose. You can and should consult with your lawyer throughout this process.
When the results of the blood test become available, the prosecution will use that to determine whether to pursue a DUI case or drop the charges. Typically, your lawyer will also use the results of that blood alcohol test to determine how to pursue your defense.
Contact Gressley & Donaldson, LLP Today After a Chemical Test Refusal in California
If California suspended your driver’s license because you refused a blood or breath test after suspicion of driving under the influence, you need the help of an experienced DUI attorney. The lawyers at our law firm have extensive experience helping people like you keep their driver’s license, even after a lawful arrest.
Don’t lose your driving privileges due to a lack of understanding of implied consent laws. Contact our legal team as soon as possible to schedule a free consultation with experienced California DUI defense lawyers.