| When a California DUI suspect refuses to take a | | | | assume that by submitting to the preliminary alcohol |
| chemical test, both the DUI defendant and the | | | | screening (PAS) test, that they have satisfied their |
| prosecution are presented with challenges and | | | | obligation to give a chemical test. In some cases, under |
| opportunities. | | | | the right facts, this can be a winning argument. |
| California has a law called the informed consent law of | | | | However, in most cases, the refusal will still be |
| chemical testing. What this means is that when you | | | | charged. |
| got your drivers license, you agreed (although you | | | | Prosecutors and judges can be very hostile towards a |
| probably did not realize it at the time) that in exchange | | | | DUI defendant who has refused a chemical test. This |
| for the state giving you your drivers license, you | | | | hostility can be expressed in increased jail time and |
| agreed to submit to a chemical test. This law means | | | | extended alcohol education programs. |
| that the state does not need a warrant or other court | | | | If the DUI defendant decides to go to trial and is found |
| order to have you submit to a chemical test. | | | | innocent of the charge of driving while intoxicated, than |
| If a DUI suspect is arrested and after arrest is given | | | | the defendant can't be found guilty of refusing a |
| the opportunity to take a chemical test such as a | | | | chemical test. |
| breath, blood, or urine test, and refuses to take any | | | | During the trial, the Jury will be given an instruction that |
| chemical test, the DUI suspect will be charged with an | | | | the act of the DUI defendant refusing to take a |
| additional crime of refusing a chemical test. | | | | chemical test is evidence that the DUI defendant was |
| The DUI suspect who refuses to take a chemical test | | | | conscious of his own guilt of the charge of DUI. In |
| gains some advantages by refusing. The prosecution | | | | some cases and before some jurors, this can pose a |
| does not have a blood level number to rely upon and | | | | significant challenge. |
| has the more difficult job of proving impairment as | | | | Given the challenges and risks to both the prosecution |
| defined in California's jury instructions. However, this is | | | | and defense, many refusal cases are settled with |
| of limited value. | | | | some charge to the defendant. In cases where the |
| Many DUI defendants are charged with refusal | | | | facts on impairment have been favorable or there |
| because at the time they were asked to take a | | | | have been other defects in the prosecution's case, I |
| chemical test, the DUI defendant believed that they | | | | have been able to obtain reductions to wet and dry |
| had the right to speak to a lawyer. While this may be | | | | reckless with a dismissal of the refusal allegation. |
| the law in some states, it is not the law in California. | | | | It should be emphasized that persons under the age of |
| This mistaken belief has lead to many refusal cases. | | | | 21 face very severe penalties for refusing a breath |
| In many DUI cases, the defendant agrees to take the | | | | test. |
| voluntary field sobriety tests while refusing to take the | | | | This article is not meant to advise anyone to refuse to |
| mandatory chemical test. What this means is that in | | | | submit to a chemical test. I advise almost everyone |
| many refusal cases, the prosecutor still has evidence | | | | that it is in their interests to submit to a chemical test. |
| of impairment through the officer's testimony about the | | | | This article is also not a warranty of a result in your |
| DUI suspects performance on the field sobriety tests. | | | | case. All cases are different. |
| Another common error DUI defendants make is to | | | | |