If you refuse to take a breath, blood or urine test after being arrested for DUI, you will face additional criminal penalties.
In California, every driver who is arrested for DUI must agree to take a chemical test. The purpose of the test is to check for BAC (blood alcohol concentration) or the presence of drugs in your system. If you do not cooperate in taking the test, you will be charged with refusing the test or “refusal.” Refusal is a sentence enhancer that makes the consequences for DUI much worse.
Chemical tests come in three different forms:
Breath and blood tests are most common in California.
How can the law force me to take a chemical test?
The law assumes a doctrine of “implied consent.” This means that you agreed to take the chemical test well in advance, the day you signed up for a driver’s license. If you didn’t want to take a test, the reasoning is that you should never have requested driving privileges. It’s part of the deal.
All 50 states currently have an implied consent law for DUI chemical tests.
What counts as “refusal”?
Officers only need to ask you once to take the test. If you refuse, delay, or don’t answer, it’s refusal.
But there are some circumstances where it may not count as refusal:
- You can request to take one type of test instead of another (a breath test rather than a blood test, for example). But if only one test is available, you have to take that one.
- If you have a medical reason you cannot take a certain kind of test, and you tell police that, it does not count as refusal.
- If officers did not warn you of the consequences of refusing, then you can challenge the refusal charge.
- If you were unable to consent to the test because of an injury, it’s not refusal. But if you were unable because of intoxication by drugs or alcohol, then it still counts as refusal.
If any of these was a factor in your case, and you were charged with refusal anyway, you can challenge the refusal charge. It’s best to have an experienced DUI lawyer help you.
What are the penalties for refusal?
The exact penalties vary depending on whether it’s your first, second or third (or subsequent) DUI in a 10-year period. For a first time DUI offense, you will be saddled with a mandatory 9-month traffic school course instead of the usual 3-month version. For all DUI’s, you will face additional jail time and a longer license suspension period.
Refusal may also affect your ability to apply for restricted driving privileges in some cases.
Note: All of the above applies only to a chemical test administered after you are arrested. A roadside breath test, pre-arrest, is known as a PAS test and follows different rules. In most cases you can refuse a PAS test without consequences.
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