Any time you are lawfully arrested for driving under the influence (DUI) of alcohol or drugs in San Diego, you are legally required to submit to a breath or blood test to determine your level of intoxication or impairment, if any. If you refuse the chemical test, you face additional administrative license actions imposed by the Department of Motor Vehicles (DMV) for a chemical test refusal, as well as increased criminal penalties if you are convicted of the DUI. If you have been arrested for DUI in San Diego or the surrounding areas, and you have been accused of refusing a chemical test, you need to take immediate action to protect your rights and avoid facing additional penalties for your chemical test refusal. Contact our knowledgeable and experienced DUI defense attorneys at Sevens Legal, APC today to discuss the best strategy for your specific DUI case.
San Diego Chemical Test Refusal Lawyer
Being arrested for drunk driving can be confusing and overwhelming and unless you are intimately familiar with California DUI laws, which are complicated and constantly changing, you will want an experienced DUI defense attorney on your side to protect your rights and ensure that you understand the charges you are facing in their entirety. For instance, you may not know that if you refuse the DUI breath or blood test following your arrest, you could face additional penalties, including an administrative suspension of your driver’s license, and your refusal to submit to the test could also be used to enhance the criminal penalties
against you if you are found guilty of the DUI at trial. If you have been arrested for DUI in San Diego, you have the right to represent yourself in court and in your DMV DUI hearing, but we recommend hiring a defense attorney who specializes in DMV hearings
and chemical test refusals. Contact our law firm today for a free evaluation of your DUI case.
Refusing the Chemical Test in San Diego
In the state of California, it is implied that drivers have consented to chemical testing for blood alcohol concentration (BAC) and/or drugs upon a DUI arrest. Under this “implied consent” law, drivers lawfully arrested for DUI in San Diego do not have the right to refuse to submit to a breath test to determine their level of intoxication or impairment, if any. This law formerly applied to blood tests as well, but the Supreme Court ruled in 2016 that defendants in DUI cases cannot be penalized for refusing a blood test unless the police have obtained a warrant. When you are arrested for suspected DUI in San Diego, you will generally be given the choice of taking a breath test or a blood test. However, if you are suspected of DUI drugs, and the arresting officer has a clear indication that a blood test would indicate the presence of drugs in your system, you may be required to take a blood test. In rare cases, a urine test may be used instead if:
- Drug use is suspected, and you are not able to take a blood test,
- A breath or blood test is not available, or
- You suffer from a medical condition that makes a breath or blood test inappropriate (a blood clotting disorder or a heart condition treated with blood thinners, for example).
Pre-Arrest vs. Post-Arrest Breath Test
California’s implied consent law prohibits drivers lawfully arrested for drunk driving from refusing a post-arrest breath test, but a pre-arrest breath test is a different story. The following is some important information about both tests and the potential consequences, if any, for refusing the tests:
Pre-Arrest Breath Test
If you are stopped by the police in San Diego and the officer who pulls you over has reason to believe you may be under the influence of alcohol, he or she may ask you to perform a series of field sobriety tests and/or submit to a hand-held breathalyzer test, known as a preliminary alcohol screening (PAS) breath test. This breath test, like the field sobriety tests, is a tool to help the officer decide whether to arrest you for DUI. Under California law, you have the right to refuse the breath test without penalty, so long as you are not under the age of 21 or on probation for a previous DUI conviction, and your refusal cannot be used against you as evidence of guilt if you are charged with DUI and your case goes to trial. It is important to know your rights when you are stopped by the police and suspected of drunk driving, because if you don’t, the police will try to take advantage of your ignorance and make it seem like you don’t have a choice when asking you to submit to a pre-arrest breath test.
Post-Arrest Breath Test
Once you have been placed under arrest and taken to the police station for booking, the arresting officer will arrange for a breath or blood test to determine your level of intoxication, if any. Legally, you may not refuse a DUI breath or blood test without facing serious consequences, even if you already submitted to a PAS roadside breath test.
Penalties for a Chemical Test Refusal
Unlike some other states, California does not make it a separate crime to refuse a post-arrest chemical test. Instead, the state imposes additional penalties on DUI defendants who refuse to submit to a DUI breath or blood test
. That means if you refuse to submit to a chemical test after being lawfully arrested for drunk driving in San Diego, and you are convicted of the DUI, you will face penalties for the DUI and enhanced penalties for the chemical test refusal. The enhanced penalties associated with a DUI chemical test refusal are as follows:
Administrative License Actions by the DMV
In addition to the penalties resulting from a criminal conviction, there are also administrative actions the DMV can take against drivers arrested for drunk driving, separate from any criminal penalties. For instance, if you are arrested for DUI in San Diego, you are 21 years of age or older, and you take a breath or blood test with a BAC result of 0.08% or higher, you face an automatic administrative license suspension of four months for a first offense, one year for a second offense occurring within ten years, and one year for a third or subsequent offense occurring within ten years. However, if you refuse to submit to a chemical test, you will face a mandatory suspension of your driver’s license by the DMV, in addition to the enhanced penalties imposed by the court in your criminal case. This includes:
- A one-year license suspension for a first offense,
- A two-year license revocation for a second offense occurring within ten years, and
- A three-year license revocation for a third or subsequent offense occurring within ten years.
San Diego Chemical Test Refusal Defense
If you refuse to submit to a chemical test, the DMV will take immediate action to suspend your driver’s license, and you will have ten days from the date of your arrest to request an Administrative Per Se (APS) hearing to contest the DMV’s decision. The DMV hearing is separate from your criminal trial and the sole purpose of the hearing is to determine whether your driving privileges will be suspended as a result of your DUI arrest. During a DMV hearing, the hearing officer bears the burden of proving the following elements of a DUI offense:
- You were driving the vehicle,
- You were lawfully arrested, and
- You had a BAC of 0.08% or higher.
However, if you refused the chemical test, the DMV must also prove that:
- You were told that your driving privileges would be suspended or revoked if you refused the test, and
- You refused to submit to the chemical test after being asked.
If you refused a chemical test and you win your DMV hearing, the DMV will not impose an administrative suspension of your driver’s license. However, if you refused a chemical test and you lose the hearing, the DMV will suspend or revoke your license according to the penalties discussed above. If this is the case, you may be able to get your driving privileges reinstated if you are found not guilty at trial or if the DUI charges against you are dismissed due to lack of evidence.
Best Defense Strategies for a Chemical Test Refusal
The main components of a chemical test refusal in San Diego are that, after being lawfully arrested for DUI and advised of the consequences of refusing a chemical test, you refused to submit to a breath, blood or, if applicable, urine test. Your attorney may be able to help you fight the penalties for refusing to take a DUI breath or blood test by presenting evidence proving that:
- Your arrest was unlawful,
- You were not informed of the consequences of refusing a chemical test,
- You were unable to hear or comprehend the admonitions advising you of the consequences of refusing a chemical test and could not give meaningful consent, or
- Your refusal to submit to the test resulted from an injury.
Under California’s implied consent law, suffering an injury does not legally excuse you from taking a DUI breath or blood test. However, your refusal to take a chemical test may be excused if you suffered an injury that prevented you from giving meaningful consent, such as a traumatic brain injury or head injury. This exception does not apply, however, if your inability to give meaningful consent was the result of your consumption of alcohol or drugs.
How Our Chemical Test Refusal Lawyers Can Help
Just because you have been arrested for or charged with DUI does not mean you don’t have rights. Any time you are facing criminal charges, you have the right to an attorney and we always recommend taking advantage of this right following a DUI arrest, especially if your case is complicated by something like a chemical test refusal. At Sevens Legal, our defense attorneys have a clear understanding of California DUI law and how it applies to your case, and with our legal team on your side, you can significantly improve your chances of beating your DUI charges or minimizing your penalties. We understand that every DUI case is different, with unique circumstances that can affect prosecution and sentencing, and we will give your San Diego DUI case the individualized attention and careful consideration it deserves.
Contact Our San Diego DUI Lawyers for Help
The law requires that, after being lawfully arrested for DUI, you are given one opportunity to submit to a DUI breath or blood test. If you refuse the test or you refuse to choose a test, you do not have the right to change your mind and the arresting officer is not obligated to give you a second chance. These are all important things to be aware of any time you are arrested for DUI in California. If you or a loved one refused a DUI breath or blood test in San Diego or the surrounding areas, and you are facing a driver’s license suspension or enhanced criminal penalties as a result of the chemical test refusal, contact our skilled DUI defense attorneys at Sevens Legal today to discuss your legal options. Our defense lawyers have extensive experience protecting the rights of clients charged with DUI and DUI-related offenses
, and we can help you get the best possible outcome in your case.