When a California DUI suspect refuses to take a chemical test,

both the DUI defendant and the prosecution are presented

with challenges and opportunities.

California has a law called the informed consent law of chemical

testing. What this means is that when you got your drivers

license, you agreed (although you probably did not realize it at the

time) that in exchange for the state giving you your drivers license,

you agreed to submit to a chemical test. This law means that the

state does not need a warrant or other court order to have you submit

to a chemical test.

If a DUI suspect is arrested and after arrest is given the opportunity

to take a chemical test such as a breath, blood, or urine test, and

refuses to take any chemical test, the DUI suspect will be charged with

an additional crime of refusing a chemical test.

The DUI suspect who refuses to take a chemical test gains some

advantages by refusing. The prosecution does not have a blood

level number to rely upon and has the more difficult job of proving

impairment as defined in California's jury instructions. However,

this is of limited value.

Many DUI defendants are charged with refusal because at the time they

were asked to take a chemical test, the DUI defendant believed that

they had the right to speak to a lawyer. While this may be the

law in some states, it is not the law in California. This

mistaken belief has lead to many refusal cases.

In many DUI cases, the defendant agrees to take the voluntary field

sobriety tests while refusing to take the mandatory chemical

test. What this means is that in many refusal cases, the

prosecutor still has evidence of impairment through the officer's

testimony about the DUI suspects performance on the field sobriety

tests.

Another common error DUI defendants make is to assume that by

submitting to the preliminary alcohol screening (PAS) test, that they

have satisfied their obligation to give a chemical test. In some

cases, under the right facts, this can be a winning argument.

However, in most cases, the refusal will still be charged.

Prosecutors and judges can be very hostile towards a DUI defendant who

has refused a chemical test. This hostility can be expressed in

increased jail time and extended alcohol education programs.

If the DUI defendant decides to go to trial and is found innocent of

the charge of driving while intoxicated, than the defendant can't be

found guilty of refusing a chemical test.

During the trial, the Jury will be given an instruction that the act of

the DUI defendant refusing to take a chemical test is evidence that the

DUI defendant was conscious of his own guilt of the charge of

DUI. In some cases and before some jurors, this can pose a

significant challenge.

Given the challenges and risks to both the prosecution and defense,

many refusal cases are settled with some charge to the defendant.

In cases where the facts on impairment have been favorable or there

have been other defects in the prosecution's case, I have been able to

obtain reductions to wet and dry reckless with a dismissal of the

refusal allegation.

It should be emphasized that persons under the age of 21 face very

severe penalties for refusing a breath test.

This article is not meant to advise anyone to refuse to submit to a

chemical test. I advise almost everyone that it is in their

interests to submit to a chemical test. This article is also not

a warranty of a result in your case. All cases are different.