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Are You Subject to Increased Penalties If You Refuse to Undergo the Breathalyzer?


Interviewer: As far as a refusal to take the Breathalyzer, would that result in more hard penalties?

What Is Implied Consent?

Attorney Bortel: Yes, in San Francisco and my information is based on recent cases. Now in the past, they would usually do what’s called a force blood draw on a client who refused to take a chemical test after being arrested. If my client refused to take a breath or blood test, the officer would say. “You’ve been arrested and you’re required to take a breath or blood test. It’s called implied consent and it’s something that you agreed to when you signed up for a driver’s license in California.” Most people don’t remember it, but it is the law.

California Will Order a Forced Blood Draw if Drivers Refuse to Take a Breath Test

You could refuse to take the test and then they would say, “Okay now we’re going to pry you down or if you’ll agree we’re going to take a force blood draw.” They would either tie someone to a chair or hold them down. They would do a blood draw, and then not only would you lose or potentially lose your license for a year, it could be more if you had other DUIs or other administrative actions against your license which resulted in one year suspension in the past.

Law Enforcement Now Has to Obtain a Warrant to Perform a Forced Blood Draw

You lose your license for a year and they’d have a blood result against you. If it’s over the legal limit, you are facing a DUI. There’s new law that has come out which has basically backed up old law. Now these police officers realize that in order to perform a forced blood draw they are required to get warrant.

Obtaining a warrant means contacting a judge, sometimes late at night, and getting them to sign off on a warrant, and the officers just don’t want to do that. At least they haven’t started doing it. I’ve heard of it happening a little bit in some counties, but I have not seen it yet in San Francisco. I’m sure it will start up at some point, but as of now if you refuse the test, a chemical test after arrest for DUI, they may not do a force blood draw.

This means you are looking at losing your license for a year because DMV will try to take it away from you. You still get a hearing, but it’s a very tough hearing to win at DMV, because all they have to show is that an officer had reasonable cause to pull you over and do a DUI investigation and that they did a lawful arrest.

A Refusal Is Typically Very Difficult to Defend at the DMV Hearing and Usually Results in the Loss of Driving Privileges

All that takes is some type of erratic driving to pull you over, then smell of the odor of an alcoholic beverage on your person, to arrest you. It is very tough to defend against refusals, I’ve beaten them before at DMV, but they are very tough. If that happens, you’re looking at no driving privileges for at least a year.

In the Court Case, a Refusal May Add to the Defense Due to the Fact One Is Providing Less Evidence for the Prosecutor’s Case

In court the case is a little different if they don’t do a force blood draw. All they’ve got to go on is the driving, your demeanor, and any objective signs of intoxication that they’ll write down. They’ll almost always write down if you had red, watery eyes, the odor of an alcoholic beverage, flushed face, an unsteady gate, but if you refused to do the field sobriety test, which you can refuse, and if you refuse the preliminary alcohol screening test, which is blowing into a device before you are arrested, they don’t have a lot of evidence.

By Aaron Bortel

Aaron Bortel

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