Saturday, April 16, 2011

DUI Attorney Explains the Law of Refusal in California

In California, a refusal to take a chemical test when arrested for a DUI can be quite severe. Sentencing and license suspension alone can result in harsh penalties. The arrested person must be told that his or her refusal to submit to or complete a required test will result in a fine and mandatory imprisonment if the person is convicted of DUI, and suspension or revocation of his or her driver’s license. Veh Code §23612(a)(1)(D), (e)–(g). License suspension or revocation is mandatory when the person refuses to submit to or complete a required test, even if he or she is later acquitted or the DUI charge is dismissed. One Lakewood DUI Lawyer tells us that this is different from other provisions which requires the DMV to reinstate the license of a person who is acquitted of driving with a blood-alcohol concentration of 0.08 percent or more, Veh C §13353 does not have a similar provision for defendants charged with refusing to take a chemical test, even when they are found factually innocent of this charge.

Sentencing enhancements can also affect the outcome. On conviction of a violation of Veh C §23152 or §23153, the defendant is subject to the sentencing enhancements set forth in the Vehicle Code, namely mandatory jail time over and above the DUI terms of probation. Before these enhancements may be imposed, the defendant’s willful refusal or failure to complete the required test must be spelled out in a formal complaint and proven beyond a reasonable doubt.

According to one Lakewood DUI Attorney , a refusal can be used against the person in criminal court as follows: The person should be advised that his or her refusal to submit to a test may be used against him or her in court. Veh C§23612(a)(4). The Courts have held that refusal to take blood-alcohol test after lawful request is not act coerced by officer and is not protected by privilege against self-incrimination and the statute prohibiting defendant from refusing to submit to chemical test does not violate privilege against self-incrimination. However, an officer’s failure to give this advisement goes to the weight, not the admissibility, of the evidence.

The person’s refusal to submit to a test unless it is administered by his or her own physician constitutes a refusal under the statute as does a refusal to submit to a test unless the person’s attorney is present  or until the person has had an opportunity to communicate with his or her attorney . According to one DUI Refusal Attorney in Los Angeles a defendant’s demand to look at officer’s card containing information on accuracy of various tests before submitting to test was a refusal. Because the test must be administered without delay, when a person refuses to submit to a test and then changes his or her mind, the person is deemed to have refused to comply with the testing requirement