Refusal and Forced Blood Tests

In many ways, a DUI prosecution based on an allegation of the defendant's refusal to submit to a test followed by a blood draw taken without the defendant's consent is the most difficult to defend. The problem with this kind of case is that the allegation of refusal to cooperate carries with it a “consciousness of guilt” element together with the additional penalties associated with a refusal. It also involves defending the reading on the blood analysis and dealing with the usual issues that go with it. This situation is more common with DUI arrests in Orange County than Los Angeles County.

The police in California have been given the power to use reasonable force to obtain a sample of blood from a DUI suspect lawfully arrested, who has refused to give consent to a sample of breath or blood. The fact that a blood analysis is available to the DMV does not save the defendant from the one to three-year license suspension that results from a refusal to submit to a test. If the licensee was properly advised as to his or her choice of test and the consequences of a refusal, the taking of a blood test without consent still carries with it the longer license suspension even if the licensee justs sits there and lets it happen without struggling. This applies even if the blood test comes back below the legal limit of .08%!

In defending the court prosecution, many prosecutors will dismiss the refusal enhancement and base the prosecution on the results of the blood test, thereby avoiding the jail time associated with a refusal, but it makes it more difficult to convince a prosecutor that a defendant deserves consideration for a reduction in the charges if the perception is that the defendant was uncooperative with the police.

In many respects, a DUI based on a refusal plus a forced blood test represents the worst of both worlds.

Please call Gold & Witham for a free consultation if you have any questions about defending DUI cases in California.