DUI Refusal Cases- A Sacramento DUI Attorney Explains
The DUI Refusal Case
California Vehicle Code Section 23612 Reads:
“(a) (1) (A) A person who drives a motor vehicle is deemed to
have given his or her consent to chemical testing of his or her
blood or breath for the purpose of determining the alcoholic content
of his or her blood, if lawfully arrested for an offense allegedly
committed in violation of Section 23140, 23152, or 23153.”
This is what is referred to as “implied consent.” That is, the California Legislature has declared that by driving on the roads of California you have impliedly consented to give a blood or breath sample upon request by a law enforcement officer following a lawful DUI arrest.
Refusing a Chemical Test When Arrested for DUI in Sacramento Results in Harsher Punishment
California Vehicle Code Section 23577 Reads:
“23577. (a) If any person is convicted of a violation of Section 23152 or 23153, and at the time of the arrest leading to that conviction that person willfully refused a peace officer’s request to submit to, or willfully failed to complete, the chemical test or tests pursuant to Section 23612, the court shall impose the following penalties:
If the person is convicted of a first violation of Section 23152, notwithstanding any other provision of subdivision (a) of Section 23538, the terms and conditions of probation shall include the conditions in paragraph (1) of subdivision (a) of Section 23538.
If the person is convicted of a first violation of Section 23153, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted and no part of which may be stayed, unless the person is sentenced to, and incarcerated in, the state prison and the execution of that sentence is not stayed.
If the person is convicted of a second violation of Section 23152, punishable under Section 23540, or a second violation of Section 23153, punishable under Section 23560, the punishment shall be enhanced by an imprisonment of 96 hours in the county jail, whether or not probation is granted and no part of which may be stayed, unless the person is sentenced to, and incarcerated in, the state prison and execution of that sentence is not stayed.
If the person is convicted of a third violation of Section 23152, punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted and no part of which may be stayed.
If the person is convicted of a fourth or subsequent violation of Section 23152, punishable under Section 23550 or 23550.5, the punishment shall be enhanced by imprisonment of 18 days in the county jail, whether or not probation is granted and no part of which may be stayed.
(b) The willful refusal or failure to complete the chemical test required pursuant to Section 23612 shall be pled and proven.”
This section of the California Vehicle code establishes the law that refusing to submit to a chemical test triggers a sentencing enhancement that if pleaded and proved (or admitted to) triggers additional punishments including added jail time for those convicted of a DUI. Any experienced Sacramento DUI attorney will tell you that the District Attorneys in Sacramento are particularly aggressive when it comes to refusal DUI cases.
Distinguish the Preliminary Alcohol Screening (PAS) from a Chemical Test
Often times, as part of the DUI investigation, and prior to a law enforcement officer making an arrest, the officer will ask if you want to blow into a Preliminary Alcohol Screening Device. This is a device that like a “breathalyzer” measures blood alcohol concentration. This test is not considered a “chemical test” as the term is used in section 23577, nor a valid test for purposes of formal evidence in court, but it helps the officer determine whether a person is over the legal limit and therefore whether they should be arrested. The “implied consent” law does not apply to the PAS and thus refusing the PAS does not trigger increased punishment upon conviction for DUI. Thus, you can refuse the PAS if you would like, but you cannot refuse the chemical test without incurring additional criminal liability.
The Danger in trying to refuse the PAS only, is that you may not be able to accurately distinguish between the PAS and the Chemical test. Further, I am distrustful of police officers and their ability to make it clear which test they are asking for, much less their willingness to tell the truth about which test you refused. Therefore, it is risky business to plan to refuse to the PAS while consenting to the chemical test, unless you are sure you know which is which. As a Sacramento DUI attorney I have had clients charged with DUI refusals, in Sacramento Court, who though they were within their rights to refuse a test because they either go the “Chemical test” and the PAS mixed up or the officer lied about which test they refused.
The Worst Part of a DUI Refusal- The License Suspension
If you refuse a chemical test as part of a first DUI investigation then your drivers license will be suspended for a year. For most people this is way worse than the added jail time. If it is a second DUI or greater, within the last 10 years, then the suspension for a refusal will be two or more years. OUCH!!
The Warrant Requirement. Missouri vs. McNeely
In 2013 the United States Supreme court made a seminal decision relating to DUI cases in the case of Missouri Vs. Mcneely. In McNeely, the Supreme Court determined that in general a warrant is required for a forced blood draw. Therefore, if you do not consent to a blood draw upon the request of an officer incident to your arrest for DUI, then the officer MUST get a warrant from a judge in order to lawfully force a blood draw, or the officer must establish some other form of exigent circumstances that would otherwise justify having the blood drawn without a warrant.
In other, words the Supreme Court ruled that in general it is a violation of your 4th Amendment right against unreasonable search and seizure to force a blood draw without a warrant. Thus, Sacramento law enforcement officers will often get a warrant prior to forcing a blood draw. If they do not, then a skilled and experienced Sacramento DUI Attorney may be able to have the evidence obtained by the warrantless forced blood-draw suppressed at trial.
Sacramento DUI Refusal Summary
1. California states that driving in California equates to implied consent to submit to a chemical test incident to a DUI arrest.
2. Refusing to submit to a chemical test, if pleaded and proven, triggers enhanced penalties including a one year suspension of your drivers license for first time DUI’s and longer if it is a second DUI or greater within 10 years.
3. You can refuse a Preliminary Alcohol Screening but not a Chemical Test, but this can be risky for reasons explained above.
4. In 2013 The United States Supreme Court ruled that when an individual refuses to submit to a blood draw for purposes of a DUI investigation, then the police must get a warrant prior to performing a forced blood draw. This does not mean the police need a warrant to ask for a blood draw. Further, consenting to a blood draw does away with the necessity of a warrant.