The DUI Chemical Test

What is the DUI TEST? 

You will receive a breath or blood test, or both.

  • A breathalyzer is used to test your breath;
  • A blood test is another tool law enforcement uses (if neither breath nor blood is available, a urine same is taken). If you refuse to submit to any chemical testing, your driver’s license will be confiscated by the police or sheriff (unless you have an out-of-state license); but you will receive a “pink” sheet of paper that provides notice of an immediate suspension of your driver’s license, but will serve as a temporary license that is valid for the next 30 days.

If this is your first offense during the past 10 years, your license will likely be suspended for up to four months. We may be able to obtain a restricted license to allow you to drive to work after the one month suspension, but you must show proof of auto insurance and enroll in DUI school. In San Diego, if you refuse to submit to chemical testing your driver’s license can be suspended for one year, and you may not get the right to drive to and from.

If this is your second offense within 10 years, the prosecutor will likely seek the Court to impose a one-year suspension, and if there is a refusal, a two-year suspension.

You have 10 days to call the Department of Motor Vehicles and speak with the Driver Safety Office to fight your license suspension by requesting a DMV Administrative Hearing. In limited cases a late request may be permitted, but do not count on it..

What is the Implied Consent Law?

California requires you to take a chemical test if you are arrested for a DUI.In other words, when you drive in California, you are deemed to give implied consent in advance to the taking of a blood, breath or urine sample in rare situations.

What is a ‘Refusal?’

If you refuse to take a chemical test when asked by a law enforcement officer who makes the arrest, the DMV will consider your actions as a “refusal” by claiming you have broken your implied agreement to take such a  test; essentially, you are deemed to have broken your implied consent or agreement to do so. Then, the DMV will start an administrative action to suspend or revoke your driver’s license. Another consequence is brought by the prosecutor who will request the Court impose a harsher penalty if you are convicted of drunk driving, which means the sentence could involve more severe penalties.If you have a commercial driver’s license and this is your second refusal, you are disqualified from ever holding a commercial license for the rest of your life. This is but one example of why an experienced lawyer is important as he can perform a painstaking analysis of all of the facts and circumstances to potentially establish a defense.

Are there any Defenses to a Refusal?

At Spital & Associates, we will review the facts and circumstances surrounding the refusal to argue there are defenses. These may include evidence of our client’s confusion. In some instances, a client may have a medical condition such as a head trauma from a car accident that renders him or her incapable of understanding what is going on. In the case where the officer improperly or confusingly explained the implied consent rules , we can assert this as a defense to the DUI. Another area we analyze to establish a defense is to ascertain whether the officer incorrectly states or omits to state the consequences of refusing the DUI test.

Penalties for a Refusal

If within the previous 10 years you were convicted of DUI or “wet reckless driving,” your driver’s license will be revoked for two years, and for  three years if you receive two or more priors.

 

Main Offices
8880 Rio San Diego Drive, Suite 800
San Diego, CA 92108-1642
Telephone: 619.583.0350
Fax: 619-583-1850

Downtown Associate Office
Of Counsel – Bill O’Connell, Esq. 
110 West C Street, Suite 1300
San Diego, CA 92101-3978

Associates available 7am-9pm daily.
Call 619.583.0350 or send us an e-mail.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.