What constitutes a "refusal" for the DMV?
Posted By Gold & Witham on Mar 30, 2010 1:50pm PDT
A failure or refusal to submit to a chemical test following a lawful arrest for DUI in California leads to a license suspension for between one and three years. The question then, is what constitutes a "refusal"?
A common problem is that some people have difficulty blowing into the breath machine after an arrest. A failure to complete a breath test may be as a result of insufficient breath or a faulty machine or some medical difficulty, but in these curcumstances, the suspect is under an obligation to submit to a blood test instead. A refusal to submit to a blood test following an aborted breath test will lead to a one to three year suspension.
Some people refuse to submit to a test and then change their mind. A request to submit to a test following an initial refusal, does not "cure" the refusal and the police are not obligated to allow a second bite at the cherry. Even if the police allow a test in these circumstances, the DMV may suspend based on the initial refusal.
Officer induced confusion is a well recognized "defense" to a refusal in DMV proceedings. This may occur if the arresting officer gives Miranda warnings following a DUI arrest, advising a suspect of their right to counsel, and then tells the suspect that they have no right to consult with an attorney before choosing a test. In these circumstances, the DMV should set aside the suspension.
Fear of needles is no excuse, although a suspect may request to see the qualifications of the person taking a blood sample as this is deemed a reasonable request.
Following an accident, a suspect who suffers a head injury and is thereby "confused" or medically impaired by the trauma, is not deemed responsible for a subsequent refusal and the suspension proceedings should be set aside.
A failure of the arresting officer to properly advise a suspect of their obligation to submit to a test and their choice of test, or a failure to advise on the consequences of a refusal may also lead to a set aside of the suspension.
The DMV do not have to establish that the licensee was impaired by alcohol or "over the limit" before suspending based on a refusal, although the arresting officer must detail some evidence of alcohol impairment before legally arresting someone for DUI. An unlawful arrest would lead to a set aside of the suspension.
It should also be noted that a dismissal of DUI charges in court, or a finding of not guilty by a jury, does not lead to a set aside of the DMV suspension based on a blood or breath test refusal.
If you have been arrested for a DUI in Los Angeles or Orange County and you are concerned about a lengthy license suspension based on a refusal to submit to a chemical test, it is essential that you consult with a DUI/DMV defense lawyer immediately to enable them to take the necessary steps to defend the DMV proceedings.