Under the California Implied Consent Law, a driver on the road "consents"
to providing a chemical test if detained and arrested for
DUI. This means a driver stopped by officers who, based on the totality of
the circumstances believe that you are under the influence of either alcohol
or a narcotic such that it has impaired your ability to operate your vehicle,
will be required to provide a chemical test. This chemical test is usually
requires a blood, breath or urine sample which is tested for alcohol or
So if a driver is required to provide a sample upon request, what are the
consequences? Well, if it is a first time DUI, the DMV will suspend that
person's license to operate a motor vehicle for one year. If it is
a second time DUI, the DMV will suspend the person's license for two
years. For a third time, the DMV will suspend three years. These are obviously
huge consequences for your typical Californian and lead to the question
of what constitutes a "refusal."
Many think that an outright refusal to provide any chemical sample is necessary
to trigger the above listed consequences and this is just not the case.
At this point in time, courts have ruled that while officers should provide
DUI arrestees with their choice of chemical tests when feasible, this
is not required. Many times resources limit the type of test that is available.
In these situations, it is necessary only that officers inform the arrestee
that a sample is required and ask them for that sample. For example, if
the only possible test requires a blood draw (and the arrestee has no
medical reason to decline) then the officer must ask the arrestee for
the test and if the arrestee declines it or makes the test itself more
difficult then he will be deemed to have refused the test. In short, you
do not always have your choice of tests.
You also are only required to be given one opportunity to provide a test.
If you opt to provide a breath test and then take steps to frustrate the
process, this will be deemed a refusal. If the machine is functional and
you are unable to provide the test, there is a chance this will be deemed
a refusal and trigger the consequences. If you do not reply when the officer
requests a chemical test, this will also be deemed a refusal. In short,
anything you do short of complying could potentially be deemed to be a
refusal and trigger the consequences. The prosecution will bear the burden
of proving that you willfully refused to submit to a chemical test should
you choose to contest your matter at trial.
In short, if you are pulled over and an officer requests that you provide
a chemical test- comply. Provide blood or breath but do not take any steps
to frustrate the testing process or you may incur additional penalties.
Law Offices of Jarrod M. Wilfert, we re-investigate each and every case and make sure our clients rights
were protected. We accept to make sure that the officers acted appropriately
and conducted a thorough investigation in an effort to get the best possible
results for our clients whether that is an outright dismissal or a minimization
of the consequences. If you have any questions, please do not hesitate to
call our office for a FREE CONSULTATION with an experienced Ventura County criminal defense
attorney at 805-901-9119.