Drivers arrested on suspicion of DUI / DWI in California are required by law to provide a sample of their blood or breath for chemical testing for alcohol content, or a sample of blood or urine if they are suspected of driving under the influence of drugs (DUID). This is known as California’s Implied Consent Law. Any driver who refuses a chemical test after a lawful driving under the influence arrest faces stiff consequences from the Department of Motor Vehicles and during a court trial.
But what constitutes refusal? Police and prosecutors consider a refusal to be anything other than absolute assent to the test. However, there are actually two types of refusals: Express, where the driver says no, and Implied, where the police say a refusal occurred but the person did not expressly refuse. An experienced California DUI / DWI lawyer from The Kavinoky Law Firm will evaluate each case individually to determine whether an implied refusal might be excused.
In some cases, an implied refusal may be excused. For example, if the driver chose to take a breath test, but was unable to provide a sufficient sample of breath to allow for a reading, police often record this as a refusal, assuming the person is deliberately blocking the mouthpiece or not blowing hard enough. However, the driver may have been ill or injured and was unable to provide a sufficient sample, or the breath machine may be faulty. In this situation, if a police officer does not allow a person who chose a breath test to take a blood test instead, and records it as a refusal, this refusal may be excused.
Another implied refusal that may be excused occurs when a driver refuses to take a breath test but police then draw the driver’s blood. If the individual doesn’t object to the draw – even though technically there is no permission granted either – police shouldn’t record it as a refusal. If the police officer had honored the initial refusal and not done the forced blood draw, a refusal would have existed. However, when the officer chose not to honor the refusal and took blood anyway, the refusal is lost.
Another type of implied refusal exists when a driver arrested for DUI / DWI was physically unable to either refuse or consent, or was in and out of consciousness. California courts have ruled that a driver who is semiconscious cannot be punished for a refusal that stems from a medical condition that is unrelated to alcohol use.
If an individual charged with drunk driving isn’t advised of the consequences of refusal, namely that their driver’s license will be suspended or revoked, or if the officer fails to advise the person of the Implied Consent Law, the refusal may be excused.
A police officer’s failure to advise the driver of the consequences of refusal may also serve as a valid defense at the DMV hearing to determine whether the driver’s license should be suspended.
Refusing a chemical test carries serious consequences with both the Department of Motor Vehicles and in criminal court. However, an implied refusal, where police merely assume that the driver refused a chemical test, can often be successfully challenged by a California defense attorney experienced in handling DUI / DWI cases.
