What Happens If I Refuse A DUI Blood Test In California?
If you refuse to do a blood test in California, that means that you have only been given the choice of a blood test because they think you are under the influence of drugs, or a breath test is not available. Under that circumstance, the officer is supposed to contact the judge on duty, get a warrant, and force a blood draw. That means it’s a non-consensual draw, and they will have to take you to a facility to have your blood drawn. If you are cooperative, you can just stick out your arm and have the blood drawn. But if someone is confrontational and says no, the officers can forcibly hold someone down and have a blood tech or phlebotomist take the blood.
The problem that you face for a refusal is that the officers will write it up and send the DMV a form for a formal administrative per se hearing. It basically indicates that your license is suspended. If that occurs, you need to request an administrative hearing with the DMV within 10 days. If you don’t, your license goes into suspension in 30 days. With a refusal, the penalty is much greater than with a non-refusal. If it’s the first refusal, and you don’t have any prior DUIs or refusals, you are looking at a penalty of a year of no driving. That’s what is at stake. They are very hard cases to win. I’ve won a number of them over the last few years, but that’s because of loopholes that I have encountered and discussed with other attorneys. However, that’s usually not the case.
It is important to recognize what’s at stake when it relates to refusals. Unfortunately, it seems like I’ve been seeing a lot more refusal situations over the last year or two. People are shocked when they realize that they are going to lose their license for a full year. If we can’t win their hearing at the DMV, or worse, if they didn’t contact me or request the hearing within 10 days of their arrest, they may not be able to get a restricted license or an ignition interlock license. They are out of luck for a year, which can be really hard and cause a lot of damage to someone.
Will I Always Be Given The Option Of Taking A Breath Or A Blood Test In A DUI Case?
In the San Francisco Bay Area and throughout California, when you get arrested for drunk driving or DUI, there is something called implied consent. Once you’ve been arrested for DUI, the officer needs to admonish you and read you the implied consent clause. Implied consent basically means that when you signed up to get a driver’s license with the Department of Motor Vehicles, you agreed to either a breath or a blood test if you’re ever arrested for a DUI.
However, if you are suspected of being under the influence of drugs, then the officer is not going to give you that choice. They are going to tell you that you need to do a blood test. If that is not available, the next option is a urine test. If you are on probation for a DUI, that is another issue. This usually means you had a previous DUI within three years. If you are on probation, you’re required to do a preliminary alcohol screening breath test before the arrest. If you are not on probation for DUI, you are not required to do that preliminary alcohol screening test, which is called a PAS test. It’s a handheld device that most officers have with them for DUI investigations. The Alco-Sensor IV is an example of a PAS device. It has a mouthpiece that comes out of a piece of plastic, and you’d have to blow into that mouthpiece.
If you are unable to blow hard enough, or if you have some type of lung issue due to a medical condition or the like, you are required to do the blood test. The officer is required to tell you that. If you cannot do the blood test because of hemophilia, a heart condition, or because you are on anti-coagulants, then you are required to do the breath test. Well over 90% of the cases in which a DUI arrest occurs, the person who has been arrested is given a choice of test. Your other option is to take neither. But, in most DUI situations, you do have a choice of the test when you have been arrested.
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