In a DUI case it is not uncommon to see a driver arrested and refuse to submit to a chemical test. When this happens the attorney will look for a defense to the refusal in order to get around the suspension and revocation the DMV seeks to impose. One possible defense is known as officer induced confusion.
It is well recognized in law that when an officer simultaneously reads a driver his implied consent warnings (no right to refuse a test and no right to consult with or to have an attorney present during its administration) in conjunction with the Miranda admonition (right to refuse interrogation and to have an attorney present at all stages of a police interrogation, etc.), it will likely induce confusion.
Therefore, in cases where a driver has been given Miranda insists on the presence of an attorney before choosing a test the courts have recognized that he [or she] may have been confused by the two warnings and the officers failure to clarify and explain the difference. In such a case the refusal to take a test has been held not to be a refusal within the meaning of California Vehicle Code section 13353. (Rust v. Department of Motor Vehicles (1968) 267 Cal.App.2d 545, 547.)
The question of officer-induced confusion is one of fact, often dependent on statements in the report indicative of the defendants desire to speak to a lawyer coupled with signs of confusion about the officers demand for an answer to which test to take. When a driver who has been given Miranda manifests confusion by asserting his [or her] alleged right to an attorney, it is incumbent upon the officer to explain that the right does not apply to these tests. (McDonnell v. Department of Motor Vehicles (1975) 45 Cal.App.3d 653, 658. The failure of an officer to clear up the confusion renders any alleged refusal to submit to a test insufficient to suspend a drivers license as a result.
Matthew Ruff is a DUI Attorney in Torrance with over 20 years experience fighting both criminal charges and DMV suspensions in California.