What Technically Constitutes A Refusal Of A Chemical Test In California?
In the state of California, if you are arrested for a DUI while driving, you are then required to take a chemical test, either a breath or a blood test. This is an automatic testing once you have received your driver’s license, you implied consent to do so. If you refuse to take a test after you are arrested the officer is required to read you an admonishment which says what will happen if you refuse to take the chemical test.
Having been read that admonishment by law enforcement, the individual who is arrested is required to take one test or the other and if at that point, they say they will not take either test, it can be considered a refusal. There are also ways to rehabilitate it. What usually happens is that the officers who make the arrest will at some point make sure the person understands what the consequences are going to be in regards to their license because they will lose their license for a minimum of a year if they refuse to take the test.
The police officer is not required other than the admonishment to do anything else when someone refuses to take a chemical test. At that point, it is a refusal. Unfortunately, what happens all the time in almost every case where someone refuses a chemical test, the officer will get a warrant from a judge and almost always will do what is called a forced blood draw. So you are going to be giving blood no matter what, and if you refused the test, then you are looking at DUI consequences plus the consequences for the refusal.
Could Equipment Malfunction Ever Lead To A False Accusation of Refusal?
Yes, it does occur sometimes and that would be with the breath test, but not the blood testing, because the person is not doing anything other than extending their arm during a blood test. What we would typically see if someone has been arrested for a DUI is they try to blow into a machine and either they cannot blow hard enough or blowing from the side of their mouth, not blowing long enough or there is something wrong with the machine. In all those cases, an officer can believe that the person is purposefully trying to not blow properly and we have seen a number of times where the officer said you refused to blow, and that is considered a refusal.
Then they will read the refusal admonishment. What should they be doing is if the situation where someone is unable to blow properly into the machine, they should let the officer know that it is not working. Either they can try it on a different machine or do a blood test. If they do not give an opportunity to the suspect for a blood test then you have an indefensible refusal case. When the officer says, “That’s it. You are not complying, this is a refusal” and they do not give you a chance for a blood test, we have more to fight there. This does happen and often.
Can Someone Change Their Mind About Refusing A Chemical Test?
That is something which is completely up to the officer, either the arresting officer or supervisor who is in charge. Someone may talk an officer into letting them do a chemical test after they refuse, but the key is making sure the officer is not marking the refusal box on the admin per se order that they are going to shoot over to DMV, because at the DMV hearing or the Admin per se hearing, if they perceive it to be a refusal that is where people are most likely to be facing the one year of no driving suspension. It typically allows you to make the refusal allegation go away in court as opposed to the DMV because in court we can always negotiate.
If Someone Remains Silent During A DUI Stop, Will That Be Considered A Refusal?
If someone goes silent when the officer arrests them and gives them a choice of tests and they do not say anything, it could very well be considered a refusal, because you are required to pick a choice of testing. If the person says and people do this all the time, “I’m not talking without a lawyer” they do not have a right to do that. If they do not have a lawyer there with them, then unfortunately the law is not on their side at this time. Unfortunately, they cannot call a lawyer and ask for advice. Typically, DUIs happen very late at night and it is very hard to get a hold of any lawyer at that late date.
We see this happen very often. I see people saying, “I don’t know which one. Which one should I do? Which one do you think I should do?” In most situations, sometimes the officer tells them what they think they should do or believe that they are supposed to do that. Sometimes the officers will say, if you do this, this is how long it will take. If you do the blood test, this is how long it will take and tell them what the procedure is going to be. That often helps people make choices.
When that happens, it can turn into a refusal with the officer saying that you are not answering my questions. You have to choose one and you are not choosing one now and he probably says the admonishment one more time and it is now considered a refusal. That kind of lack of patience or tolerance can be a number of issues concerning our law enforcement. It can also result in a refusal allegation possibly being beaten or reversed. It happens once in a while. It is not very often that someone stays silent with these accusations.
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