Refusal

After a DUI arrest, the officer will ask the driver to submit to a chemical test of the breath or urine. In many of these cases, the driver will simply refuse to submit. The refusal deprives the prosecutor of an important piece of evidence, but a refusal also comes with enhanced administrative penalties.

In DUI refusal cases, the prosecutor will argue that the refusal shows a “consciousness of guilt” as set out in Vehicle Code § 23612. Additionally, the prosecutor will usually ask the court to instruct the jury that refusal to submit to a chemical analysis for blood alcohol content may demonstrate consciousness of guilt. See People v. Sudduth, 65 Cal.2d 543, 547 (1966).

Attorneys for DUI Refusal in San Francisco, CA

If you were arrested for DUI and allegedly refused to submit to a breath or blood test, then contact an attorney at Ticket Crushers. We represent clients on a wide variety of drunk driving offenses after a breath test, blood test, or alleged refusal to submit to chemical testing.

Call us to find our more about California’s Implied Consent Statute and how it might impact the prosecution of your case by the prosecutor with the District Attorney’s Office in San Francisco. Let us put our experience to work for you. Call 1 (866) 842-5384 today to discuss your case.


Jury Instructions in a DUI Refusal Case

The standard jury instructions for DUI refusal can be found in Judicial Council of California Criminal Jury Instruction 2130. Under that instruction, the jury is told that California law requires that any driver who has been lawfully arrested to submit to a chemical test at the request of a peace officer who has reasonable cause to believe that the person arrested was driving under the influence of alcohol or a controlled substance.

If the defendant refused to submit to such a test after a peace officer asked him or her to do so and the officer explained the test’s nature to the defendant, then the defendant’s conduct may show that he or she was aware of his or her guilt.

The jury is instructed that if they conclude that the defendant refused to submit to such a test, then it is up to the jury to decide the meaning and importance of the refusal. However, evidence that the defendant refused to submit to such a test cannot prove guilt by itself.

The instruction on refusal to submit to chemical testing of the breath or blood will not apply to a defendant who is exempted from the implied consent law because the defendant has hemophilia or is taking anticoagulants. (See Veh. Code, § 23612(b) & (c).)


California’s Implied Consent Statute

California’s implied consent statute states that the “testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Sections 23140, 23152, or 23153.” (Veh. Code, § 23612(a)(1)(C).)

Remaining silent in response to repeated requests to submit to a chemical analysis can also constitute a refusal. See Lampman v. Dept. of Motor Vehicles, 28 Cal.App.3d 922, 926 (1972).

If the defendant selects one test but is physically unable to complete that test, the defendant’s refusal to submit to an alternative test can constitute a refusal. See Cahall v. Dept. of Motor Vehicles, 16 Cal.App.3d 491, 496 (1971); Kessler v. Dept. of Motor Vehicles,  9 Cal.App.4th 1134, 1139 (1992).


Can the Defendant Place a Condition on the Consent to Submit to Testing?

Several cases in California establish that a “refusal to submit” under Veh. Code Section 13354 occurs if the defendant agrees to take the test, but only if some condition is met. See Webb v. Miller, 187 Cal.App.3d 619  (1986). For instance, in Covington v. Dept. of Motor Vehicles, 102 Cal.App.3d 54, 57 (1980), the defendant’s response that he would only take test with an attorney present constituted a refusal.

Conversely, in Ross v. Dept. of Motor Vehicles, 19 Cal.App.3d 398, 402–403 (1990), the court held that the defendant was entitled under California’s implied consent statute to request to see the identification of the person drawing his blood. The court reasoned that the request was reasonable in light of the risks of HIV infection from improper needle use. Thus, the defendant could not be penalized for refusing to submit to the test when the technician declined to produce identification.


Can the Defendant Consent to Testing After First Refusing?

Another issue that arises in many of these cases is whether the defendant can recant his refusal to submit to testing. “Once the driver refuses to take any one of the three chemical tests, the law does not require that he (or she) later be given one when he (or she)  decides, for whatever reason, that he (or she) is ready to submit. … Simply stated, one offer plus one rejection equals one refusal; and, one suspension.” See Dunlap v. Dept. of Motor Vehicles, 156 Cal.App.3d 279, 283 (1984).


DUI Refusal as an Enhancement

After a DUI arrest, the officer will ask the driver to submit to a breath, blood, or urine test. In many cases, the driver will simply refuse to submit. In these cases, the driver can face enhanced penalties because of the refusal to submit. DUI Refusal as an enhancement is found in Vehicle Code §§ 23577 and 23612.

The implied consent statute states that the “testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Sections 23140, 23152, or 23153.” (Veh. Code, § 23612(a)(1)(C).) Therefore, a lawful arrest is required before the arresting officer can ask the person to submit to testing.

The enhancement for refusing does not apply if the defendant is exempted from the implied consent law because he or she has hemophilia or is taking anticoagulants. (See Veh. Code, §§ 23612(b) and (c).)

The prosecutor has the burden of proving beyond a reasonable doubt that the defendant willfully refused to submit to or complete a chemical test to determine the blood alcohol content or whether a drug was consumed that caused impairment.

In cases in which the defendant is found to be guilty of DUI or DUI causing injury while driving under the influence, then the jury is asked to decide whether the prosecutor has proved the additional allegation that the defendant willfully refused to submit to or complete a chemical test to determine the blood alcohol content or whether drugs were consumed.

The elements of the enhancement are all of the following:

  • A peace officer asked the defendant to submit to a chemical test to determine the blood alcohol content or whether he or she had consumed a drug
  • The peace officer fully advised the defendant of the requirement to submit to a test and the consequences of not submitting to a test
  • The defendant willfully refused to submit to a test or to complete the test
  • The peace officer lawfully arrested the defendant and had reasonable cause to believe that defendant was driving a motor vehicle in violation of Vehicle Code Sections 23140, 23152, or 23153.

The jury instruction for DUI refusal as an enhancement is set out in Judicial Council Of California Criminal Jury Instruction 2131.


Implied Consent Warning in California

To fully advise the defendant, the peace officer must have stated to the defendant all of the following information:

  • You may choose a blood or breath or urine test. If you complete a breath test, you may also be required to submit to a blood or urine test to determine if you have consumed a drug. If only one test is available, you must complete the test available. If you are not able to complete the test chosen, you must submit to another test.
  • You do not have the right to have an attorney present before saying whether you will submit to a test, before deciding which test to take, or during administration of a test
  • If you refuse to submit to a test, the refusal may be used against you in court
  • Failure to submit to or complete a test will result in a fine and mandatory imprisonment if you have ever been convicted of driving under the influence or with a blood alcohol level of 0.08 percent or more
  • Failure to submit to or complete a test will result in suspension of your driving privilege for one year or revocation of your driving privilege for two or three years

The long alternative of the implied consent statute provides:

  • Your driving privilege will be revoked for two or three years if you have previously been convicted of one or more specific offenses related to driving under the influence or if your driving privilege has previously been suspended or revoked
  • Your driving privilege will be revoked for two years if you have been convicted within the previous (seven or 10) years of a separate violation of Vehicle Code Sections 23140, 23152, 23153, or 23103 as specified in Section 23103.5, or of Penal Code Sections 191.5 or 192(c)(3)
  • Your driving privilege will also be revoked for two years if your driving privilege has been suspended or revoked under Vehicle Code Sections 13353, 13353.1, or 13353.2 for an offense that occurred on a separate occasion within the previous (seven or 10) years
  • Your driving privilege will be revoked for three years if you have been convicted within the previous (seven or 10) years of two or more of the offenses listed above
  • Your driving privilege will also be revoked for three years if your driving privilege was previously suspended or revoked on two occasions, or if you have had any combination of two convictions, suspensions, or revocations, on separate occasions, within the previous (seven or 10) years

The “10-year” time period applies unless the law prior to January 1, 2005 is applicable. The law prior to January 1, 2005, required only a “seven-year” time period.


Attorney in San Francisco for a DUI Refusal Case

If you were arrested for DUI in the City of San Francisco, or the surrounding areas in the County of San Francisco, then contact an experienced criminal defense attorney at Ticket Crushers. Call us to find out how California’s Implied Consent Statute might impact your case.

We represent clients after a first DUI, a second DUI, or a third or subsequent offense. Call the San Francisco DUI Attorneys at Ticket Crushers to discuss your case.