Refusing A Chemical Test In California
- October 21, 2015
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The fact you have a driver’s license in California means that you agreed to abide by the implied consent rule. This means submitting to a chemical test administered by a law enforcement officer in order to determine whether you were driving under the influence.
California law requires you to submit to a chemical test to establish DUI, but you can still refuse to do it if you are over 21. Naturally, this has direct consequences, such as immediate driver’s license suspension by the Department of Motor Vehicles. If that is your first DUI charge, the suspension is for a year. For every subsequent DUI charge within a period of 10 years, the suspension rises incrementally by a year. A fourth DUI charge is a felony and has far greater consequences. All of this is something the arresting officer is required to inform you of after asking you to submit to a chemical test.
Important notes on tests
Implied consent means that you are deemed to have consented to taking a chemical test after you have been lawfully arrested. In order for the officer to arrest you there has to be reasonable doubt you were driving under the influence. The officer establishes this by the impression your behavior and driving make and by doing field sobriety tests. A part of FST are preliminary alcohol screening tests (PAS). This is Breathalyzer, for example. You are not required to accept taking PAS tests if you are of age.
What makes a refusal?
It might seem strange having to elaborate on this, but in these situations refusals are not always clear-cut.
First of all, you don’t always have a choice which test to take. The samples for determining blood alcohol concentration can be breath, blood and/ or urine. The urine test is considered the least reliable one and is usually applied when there is suspicion of drug abuse. If you are, let’s say, requesting a urine test, but you are offered a blood test, this will be taken as a refusal. Basically, you only have a choice if the law enforcement officer gives you some. It is only in the case of certain medical conditions that demanding another type of test is not seen like a refusal.
Secondly, the law enforcement officer needs only ask once. That means that if you refuse a test, but then after some deliberation have a change of heart, this is still construed as a refusal.
If you are silent upon being asked to submit to a chemical test, that is also considered refusing the test. This also applies even when you didn’t hear the request.
Should you accept taking the test, but you willfully fail to complete it this also qualifies as a refusal. Failing to complete a test includes not blowing hard enough in a breath test or not producing a urine sample or producing an insufficient amount.
Can your refusal be challenged in court?
In a lot of cases, yes. And it would be wise to so in order to minimize the penalties. As we have said, refusing a chemical test incurs additional penalties to the DUI charge. Contesting a straightforward and especially alleged refusal may reduce your charge and its consequences. This is why a skillful and experienced lawyer is of immense value in fighting your case. The San Diego Car Accident Lawyer is here to help you and provide you the best possible defense. Contact us today for a free consultation!