What is a DUI Refusal California case and what are the defenses?
A DUI with refusal in California is treated as a misdemeanor with an “enhancement” or additional charge that carries with it jail time and increased driver’s license suspension. The penalties that occur in DUI with refusal cases come from two sources: the criminal courts and the DMV.
A DUI with refusal is a DUI case where the driver refuses to submit a blood or breath test when instructed to do so by law enforcement. If the driver refuses to submit one of these tests, the driver can still be arrested for DUI, and will face an “enhancement” or “additional allegation” that they refused to submit a chemical test.
DMV Penalties for DUI Refusal California cases:
There is a 1 year Driver’s License Suspension for DUI Refusal Cases in California: CVC 13353
The California DMV is very harsh when it comes to DUI refusal cases. Drivers who are found to have been lawfully detained and asked by law enforcement to submit a breath or blood test are given a 1 year driver’s license suspension by DMV if they refuse. Unlike “normal” DUI cases where the driver did submit a blood or breath sample, in refusal cases there is no provision in the law for a “restricted” to-from work driver’s license after a set period of time. For example, in 1st offense DUI cases, a driver can qualify for a restricted to-from work license after 30 days. For a 2nd DUI, the driver can qualify for a to-from work license after 90 days. When a refusal allegation occurs, there is NO RESTRICTED license, and the driver faces a HARD suspension (no driving, not even to or from work) for the full 1 year period. (See CVC 13353 text below):
To beat a Refusal case, the driver has to show that:
1.. The arrest/detention was not lawful
2. The driver was not given a proper admonishment
During the DMV hearing, for the DMV to suspend the driver’s license for 1 year in a refusal case, they have to show that the initial contact by police led to a lawful arrest (for a legitimate violation of a driving code section such as speeding). If the officer pulled the driver over “on a hunch” or “whim” the stop was not lawful, and the driver will not face the enhanced penalty.
The second thing that the DMV must show is that the driver was given the proper admonishment by law enforcement. “Admonishment” is a fancy legal word for “warning.” Simply put, the police (or sheriff or other law enforcement officer) in your case has to give you the proper, official warning that states that
1. You have a choice of blood or breath test
2. That you must submit a sample (either test)
3. If you refuse, you may lose your license for 1 year and face additional penalties in criminal court
4. You do not have the right to consult with an attorney before choosing which test to submit.
Court Penalties: What happens in California DUI Refusal Cases:
If a person is charged with DUI in California and they refused to submit a chemical test sample, they face additional “enhancements” that include jail time and additional alcohol education classes (that show the dangers of driving under the influence.)
DUI refusal cases are good from a defense point of view because they do not involve scientific evidence (blood or breath evidence) and therefore give the prosecution less evidence to show impairment by alcohol. On the other hand, there is an enhancement that involves some jail time if the driver is convicted.