DUI Refusal Case Dismissed
Posted By Gold & Witham on Oct 20, 2009 11:12am PDT
Sometimes it pays to refuse to submit to a chemical test. My DUI case in West Covina Court this morning was dismissed by the prosecutor based on a lack of evidence of impairment.
Ofcourse, the law in California is that a suspect lawfully arrested for a DUI impliedly consents to a breath or blood test and has no right of refusal. The stakes are higher in refusal cases as the DMV suspension for DUI is much longer and the Court will impose greater penalties including some jail time in the event of a conviction. It is therefore, generally better to cooperate and submit to a test than refuse. In some jurisdictions, particularly in Orange County, arresting agencies take a blood sample by force in the event of a refusal. The law allows reasonable force in the taking of a blood sample without consent.
In my case, my client performed well on field sobriety tests, and the evidence of impairment was weak. My client refused because he had been given inaccurate advice from another attorney in the past that this is what he should do in the event of an arrest. I believe that had my client consented to a test, based on his drinking pattern, he would have been under the legal limit and may not have been charged in the first place. However, it is still not easy to obtain dismissals as prosecutors are always open to criticism for being lenient. It is much easier for a prosecutor to be tough and insist on DUI penalties in refusal cases.
I stilll have the problem of dealing with my clients DMV case. The lack of evidence of impairment will not help there as it is not an issue that the DMV has to prove in a refusal case. The only argument I have relates to the legality of the arrest based on the good performance of field sobriety tests, although the police do not need much to justify an initial arrest. My client will probably end up with a one year license suspension even though he will not have a DUI on his record.