A DUI refusal charge in California can result in many additional penalties including loss of driving privileges. However, in the recent Ninth Circuit case out of California, United States v. Harrington (2014 DAR 4828), the United States Court of Appeals, a DUI conviction which included a refusal was reversed where a park ranger on federal land advised a person who was under investigation for driving under the influence that if he refused to take a chemical test his driver’s license would be suspended for one year or revoked for 2 or 3 years. At the time of the arrest, the park ranger read the DUI admonitions under California State Law not Federal Law which makes it a misdemeanor to refuse to take a chemical test which is a different standard than the law in California.
DUI WITH A REFUSAL IN CALIFORNIA
When arrested or detained in California for driving under the influence of drugs or alcohol, many people believe that refusing to take a chemical test is the correct decision to make to prevent them from being convicted of driving under the influence. Unlike Federal law it is a misdemeanor to refuse to take a chemical test when stopped for a DUI on federal land. The punishment for being convicted of refusing to take a chemical test in a federal case is a maximum of up to 6 months in jail and/or a fine of up to $5000.00. In California, whether it be in Los Angeles, Orange, Riverside or any other county refusing to take a blood or breath test upon arrest for DUI is only criminally sanctioned if a person is convicted of the related DUI charge.
However, in California, when arrested for DUI, there are two different proceedings that a person must face when defending a DUI. First, there is a criminal proceeding where a defendant has a right to a jury trial and can often successfully get charges dismissed or reduced with the help of a competent criminal defense attorney. Second, a person arrested for DUI also must face an administrative proceeding from the California Department of Motor Vehicles where the DMV can suspend a first time DUI arrestees license for 4 months or for 30 with a 6 month license restriction upon application for a restriction and approval by the DMV. In the area of refusals, the DMV automatically suspense a person’s license for 1 year upon proof of a refusal at a hearing which can be a severe penalty especially in California where people heavily rely on their vehicle to work. Thus, it is important to understand the immediate consequences of refusing to take a chemical test when arrested for Driving Under the Influence in California.
BEATING A DUI CHARGE WITH A REFUSAL
As mentioned above, many people believe it is wise to refuse to take a chemical test since there will be no evidence to convict a person if there are no blood or breath results to present at trial.
Under California Vehicle Code section 23152(b), it is unlawful for a person to drive a vehicle with a blood alcohol level of .08 or higher. This is the vehicle code section charged in most DUI cases and which people believe they cannot be convicted of if there are no chemical results. However, in almost every DUI case especially all cases dealing with a refusal, a person will also be charged with a violation of California Vehicle Code section 23152(a) which makes it unlawful to drive a vehicle while impaired under the influence of alcohol or drugs. In a refusal case, a prosecutor will always introduce evidence proving a person was driving under the influence of alcohol or drugs most often times from the observations from the arresting officers. Such observations will almost always include the smell of alcohol on a person’s breath, erratic or unlawful driving maneuvers, failure to complete the Field Sobriety Tests, slurred speech, blood shot and admissions from the arrestee to name a few observations. Such observations will constitute evidence and can be used to convict a person for DUI and refusal even when there is no evidence of a chemical test taken.
If convicted in a criminal case for DUI with a refusal, a person will face additional penalties including mandatory jail time. For a first time refusal, a drivers license will be suspended for a year. If you are convicted for a second DUI with a refusal, a driver will face a 2 year license suspension in California and a 3 year license suspension if it is a third DUI coupled with a refusal.
In most cases, it is not prudent to refuse to take a chemical test. It is often time more beneficial to have an experienced California DUI Attorney challenge the results of any DUI chemical test which would include the hiring of an expert toxicologists. There are many defenses available to a person convicted of DUI and if arrested for DUI, it is advisable to immediately consult and retain an criminal defense attorney with experience defending DUI charges.