Anyone driving in California is deemed to have given consent to a blood or breath test following a lawful arrest for DUI. This is called "implied consent". If a DUI suspect refuses to submit to a chemical test, the arresting officer should read to the suspect an admonition which informs the person under arrest of his or her obligation to submit to a breath or blood test and the consequences of a refusal. The consequences include a one to three year license suspension and a minimum of forty eight hours in jail. The suspect should be told that they do not have the right to consult with an attorney prior to submitting to a test. If the police fail to give this admonition in full, the suspect cannot be held responsible for the increased penalties associated with the refusal.
The police do have the right in law to use reasonable force to obtain a blood test without consent, but only a few isolated agencies do this regularly. Some local police departments in Orange County force blood samples in DUI refusal cases. This does not happen frequently in Los Angeles.
The fact of a refusal to submit to a sample can be evidence of guilt in court if the case goes to jury trial. Ofcourse, this would depend on the reason for the refusal and whether there is a valid or believable explanation for it independant of the defendant trying to avoid responsibility.
A person cannot be convicted of DUI just because they refused to submit to a blood or breath test. There must be other evidence of guilt such as bad driving, poor performance of field sobriety tests or objective symptoms of impairment.
A suspect should be given the choice of test, blood or breath. Urine is no longer a choice of test, unless the DUI arrest is based on drugs, not alcohol. If the police believe that drugs are involved, or if a breath test is not available (for example following an accident, if the suspect is in hospital), the police may insist on a blood test.
DUI refusal cases carry a one to three year license suspension unless the DMV hearing is won. Winning the DMV hearing in DUI refusal cases is often the main priority for DUI lawyers in Los Angeles as the licensee is not eligible for a restricted license in the event of a suspension.
Gold and Witham Attorneys at Law have successfully avoided license suspensions, jail time and DUI convictions for many clients arrested in circumstances where they have refused to submit to a blood or a breath test. These cases can be won with the right strategy. Please call 562 938 7771 for a free consultation.