The DUI Chemical Test
If you have been arrested for drunk driving, you have a choice of:
- A breath test that indicates .08 percent blood-alcohol or more, or
- A blood test and if neither breath nor blood are available, a urine sample is taken for later analysis, however, if you refuse to submit to chemical testing, your driver’s license is immediately confiscated by the officer (unless you have an out-of-state license), and you will receive a “pink” sheet of paper; this is your formal notice of immediate suspension and serves as a temporary license valid for 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 reduce this to one month suspension followed by five months in which you can drive with a work restriction if you file proof of enrollment in a DUI school and proof of insurance. On the other hand, if you refuse to submit to chemical testing, your driver’s license can be suspended for one year, and no work restriction is possible. If this is your second DUI within 10 years, the prosecutor will demand a one-year suspension, and a two-year suspension if there a test is refused. You have only 10 days to call the Driver Safety Office of the Department of Motor Vehicles to contest the suspension at a DMV Administrative Hearingy. A late request may be obtained in very limited circumstances.
The Implied Consent Law
By driving in California you are deemed to give implied consent in advance to the taking of a chemical test if you are arrested for a DUI. If you refuse to do so when asked by the police, CHP or a sheriff who is making the arrest, the DMV will consider your actions as a “refusal” because you have arguably broken your implied agreement to take a chemical test.
If you are arrested for driving under the influence and refuse to take a chemical test, you are deemed to have broken your implied consent and there are severe penalties. One of the consequences is that the DMV will seek to suspend or revoke your driver’s license; and, the prosecutor will request a harsher sentence from the Court if you are convicted of a DUI.
Defenses to a Refusal
At Spital & Associates, we analyze the facts and circumstances for DUI defenses, such as “confusion” on your part. For example, if you have a medical condition that renders you incapable of understanding what is going on, such as head trauma from a car accident, then we can assert a defense to the penalties associated with a “refusal.” Another argument is based on the officer confusing you by the explanation of the implied consent rules. In addition, if the officer mistakes, incorrectly states or omits to state the consequences of a refusal to take the chemical test, we can assert a defense to a refusal action.
Penalties for a Refusal
Ordinarily if you have no prior DUI, your driver’s license will be suspended for one year if you refuse to take a chemical test, and there are no defenses that can be asserted on your behalf. If you were convicted of DUI or “wet reckless driving” within the previous 10 years, your driver’s license will be revoked for two years. Your license will be revoked for three years if you receive two or more priors in 10 years.
If you have a commercial driver’s license and this is your second refusal, you are disqualified from ever holding a commercial license again.
8880 Rio San Diego Drive, Suite 800
San Diego, CA 92108-1642
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.