California DUI: What If You Don't Consent to a Chemical Test?
Be prepared to lose your license for a year.
California, like all states, has an implied consent law that requires drivers to submit to a chemical test when law enforcement officers have probable cause to believe the drivers have been driving under the influence of alcohol or drugs.
When did you "imply" your consent?
When you applied for and received a driver’s license, you are presumed to have agreed to take one of these chemical tests if asked —thus the term “implied consent.”
What kind of chemical test must you take?
Once you’re pulled over for a DUI in California, you can choose between a blood or breath test for blood alcohol content or, if drugs are suspected, a blood or urine test. (If neither blood nor breath tests are available, then you have to take a urine test.) Typically, a breath test is administered first as a preliminary testing and based on the preliminary findings, a blood test may be initiated. If you refuse the preliminary breath test and the officer has reason to think you’ve been drinking, the officer can arrest you and require you to take the test.
When is the test given?
The test must be taken at the time of your arrest, and the officer should give you the choice between a blood or breath test.
What if you have a medical condition that prohibits testing?
California law has an exemption for people taking anticoagulants for a heart condition or who have hemophilia – that is, they don’t have to take the blood test.
What does the officer have to tell you?
Basically, the officer must explain to you that refusal means you will be fined, will lose your license, and that you could be sent to jail if you are later convicted of a DUI.
Do you have the right to speak with an attorney before deciding whether to take the test?
You don’t have the right to speak to an attorney about whether you should take the test and the officer should tell you that.
What does “refusal” mean?
A refusal can be express – that is you explicitly tell the officer you are refusing – or it can be implied – for example, you remain silent when asked whether you consent. It is also a refusal if you fail to complete a test after you agreed to do it.
What are the penalties for refusing to take the test?
In California, the minimum penalty is a one-year suspension of your license. You could lose your license for two years if this is your second refusal or if you already had a reckless-driving or DUI conviction within the last ten years. The penalty jumps to a three-year suspension for your third refusal or if you have had more than one reckless-driving or DUI conviction within ten years. By the way you can be convicted of a DUI and refusal to take the test. The fine for refusal to take the tests, according to Vehicle Code § 14905 is $125 (plus enhancements).
What does the law state?
California Vehicle Code Section 13353 Refusal of Chemical Test
13353(a) If a person refuses the officer’s request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, and that the person had refused to submit to, or did not complete, the test or tests after being requested by the officer, the department shall do one of the following:
(1) Suspend the person’s privilege to operate a motor vehicle for a period of one year.
(2) Revoke the person’s privilege to operate a motor vehicle for a period of two years if the refusal occurred within 10 years of either (A) a separate violation of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, that resulted in a conviction, or (B) a suspension or revocation of the person’s privilege to operate a motor vehicle pursuant to this section or Section 13353.2 for an offense that occurred on a separate occasion.
(3) Revoke the person’s privilege to operate a motor vehicle for a period of three years if the refusal occurred within 10 years of any of the following:
(A) Two or more separate violations of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, or any combination thereof, that resulted in convictions.
(B) Two or more suspensions or revocations of the person’s privilege to operate a motor vehicle pursuant to this section or Section 13353.2 for offenses that occurred on separate occasions.
(C) Any combination of two or more of those convictions or administrative suspensions or revocations.
The officer’s sworn statement shall be submitted pursuant to Section 13380 on a form furnished or approved by the department. The suspension or revocation shall not become effective until 30 days after the giving of written notice thereof, or until the end of 2 a stay of the suspension or revocation, as provided for in Section 13558.
(D) For the purposes of this section, a conviction of an offense in any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada that, if committed in this state, would be a violation of Section 23103, as specified in Section 23103.5, or Section 23140, 23152, or 23153, or Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code, is a conviction of that particular section of the Vehicle Code or Penal Code.
13353(b) If a person on more than one occasion in separate incidents refuses the officer’s request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612 while driving a motor vehicle, upon the receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, the department shall disqualify the person from operating a commercial motor vehicle for the rest of his or her lifetime..
13353(c) The notice of the order of suspension or revocation under this section shall be served on the person by a peace officer pursuant to Section 23612. The notice of the order of suspension or revocation shall be on a form provided by the department. If the notice of the order of suspension or revocation has not been served by the peace officer pursuant to Section 23612, the department immediately shall notify the person in writing of the action taken. The peace officer who serves the notice, or the department, if applicable, also shall provide, if the officer or department, as the case may be, determines that it is necessary to do so, the person with the appropriate non-English notice developed pursuant to subdivision (d) of Section 14100.
13353(d) Upon the receipt of the officer’s sworn statement, the department shall review the record. For purposes of this section, the scope of the administrative review shall cover all of the following issues:
(1) Whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153.
(2) Whether the person was placed under arrest.
(3) Whether the person refused to submit to, or did not complete, the test or tests after being requested by a peace officer.
(4) Whether, except for a person described in subdivision (a) of Section 23612 who is incapable of refusing, the person had been told that his or her driving privilege would be suspended or revoked if he or she refused to submit to, or did not complete, the test or tests.
13353(e) The person may request an administrative hearing pursuant to Section 13558. Except as provided in subdivision (e) of Section 13558, the request for an administrative hearing does not stay the order of suspension or revocation.
13353(f) The suspension or revocation imposed under this section shall run concurrently with any restriction, suspension, or revocation imposed under Section 13352, 13352.4, or 13352.5 that resulted from the same arrest.