Do You Need a Refusing the Chemical Test Lawyer? We Can Help
Refusing the Chemical Test Lawyer San Diego
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
Refusing the Chemical Test in San Diego
- 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
- First DUI offense: an additional 48 hours in jail and an additional six months of DUI school
- Second DUI offense within ten years: an additional 96 hours in jail
- Third DUI offense within ten years: an additional 10 days in jail
- Fourth or subsequent DUI offense within ten years: an additional 18 days in jail
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
- 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
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