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WHAT TO DO IF FACING A SANTA BARBARA DUI OR TEST REFUSAL

If you’re pulled over, suspected of drunk driving, should a suspected Santa Barbara drunk driver refuse a blood alcohol (BAC) test? As a Santa Barbara DUI Attorney I am asked this very question time and time again. Based on statewide averages reported by the California DMV it can be estimated that 6% of DUI arrests result in a refusal. Santa Barbara DUI statistics most likely are not far off that mark. For many the answer rests in the impact that a DUI refusal will have on their driver’s license. However, the refusal of a chemical test (whether blood or breath), is addressed not only with the DMV, but both in the courts and with the DMV. The penalties for a DUI are harsh enough, added to the refusal is the Driver’s License Suspension that many see as be the harshest of consequences.

WHAT IS A DUI REFUSAL?

“Refusing” a DUI chemical test may seem a bit obvious, as simple as “I’m not taking any tests,” however there are also many not so obvious ways to deemed a refusal by the DMV.

If you refuse to take a DUI chemical test initially, “I’m not taking any tests,” and you change your mind. The officer has no legal obligation to give you a second chance. You are only required to be given one chance to submit to a test.  In Dunlap v. Dept. of Motor Vehicles, a California case from the 1980’s the court held; “Once the driver refuses to take any one of the three chemical tests, the law does not require that he (or she) later be given one when he (or she) decides, for whatever reason, that he (or she) is ready to submit. … Simply stated, one offer plus one rejection equals one refusal; and, one suspension.”

The rule Santa Barbara Dui Lawyers must contend with is “one offer plus one rejection equals one refusal.” Another way to put it is the DMV holds that you must jump up and say, “Sure, absolutely I’ll take a …..” Okay maybe a bit overstated, but that seems to be the case.

There are also, somewhat other subtle ways to refuse in the eyes of DMV, by way of silence. If you are offered a choice of tests and you do not respond, your silence may be considered a DUI chemical test refusal.

Indecisiveness, wishy washy, “I don’t know,” “I’m not sure,” offers a little defense for the Santa Barbara Attorney. However, DMV holds if you do not choose a DUI chemical test, it will be considered a refusal.

There is also something called the “implied refusal.” This is where there is a failure to blow hard enough into the breathalyzer. Under the law if you cannot complete the test of your choice, you must provide the other option, failure to do so will result in a refusal being alleged. So you consent to the breath test. Maybe you monkey around while blowing into the breathalyzer, and it cannot get a result, or maybe you truly don’t have the lungs and/or wind to complete the test (one too many Marlboros).  Failure to complete the test, and contest to the remaining test (a blood test) may be deemed a refusal. The Dui Arrest Report will most likely indicate or suggest you were purposely not providing a sufficient breath sample for the breath machine. You will then be required to submit to a blood test, and if you declined the blood test, you will be considered to have refused by the DMV.

WHAT IS NOT A REFUSAL

If you are incapacitated because of bodily injury such as head trauma, epilepsy, etc., your failure to take a chemical test will be excused. Note that your incapacitation may not be a result of choice.  Choosing to drink or take drugs and becoming incapacitated from that activity is not a valid excuse for failing to take a chemical test.

SOME OF THE RIGHTS YOU REALLY DON’T HAVE

You do not have the right to consult with a Santa Barbara DUI Lawyer before a DUI chemical test. Normally you have the right to speak to an attorney following an arrest. However, this right does not apply to chemical tests following a DUI arrest.

You do not have the right to have your own physician present during the test.

You are not entitled to have your own physician conduct or observe the DUI chemical test. The test will be/should be conducted by trained law enforcement personnel or an outside laboratory in accordance with Title 17 CCR regulations.

How about “you have the right to remain silent” if you are arrested. This “Miranda” warning means only that you have the right not to incriminate yourself. It does not mean you do not have to choose which chemical test you will take after a DUI arrest.

IMPLIED CONSENT LAW

The concept of refusing, being punished for refusing to cave into the cops, seems to be contrary to our constitutional rights and understands. Very true. Very harsh. It is said “driving is a privilege, not a right.” This is the corner stone of the uphill battle when facing an alleged refusal. It’s much like a contract, or an agreement with the State. You agreed with the State of California when you received your license that if you were lawfully arrested for DUI, you would submit to a test, that failure to do so (submit to a test) is a breach of your agreement with the State/DMV. The DMV will then suspend you license for that breach.

WHAT MUST BE PROVED AT THE DMV FOR A REFUSAL TO BE UPHELD

1.       Did the arresting officer have reason to suspect that you were driving under the influence?

2.      Were you lawfully arrested?

3.      Were you properly advised that your license would be suspended for one year…or revoked for two or three years (with prior DUIs) if you refused to submit to or failed to complete a DUI chemical test?

4.      Did you willfully refuse to submit to or fail to complete a chemical test after the officer asked you to do so?

ARREST

Once arrested for suspicion of DUI, California’s “implied consent” law kicks in. It provides you have no right to refuse a DUI blood or breath test once you are lawfully arrested for DUI. The arrest has to be a lawful arrest, something your Santa Barbara DUI Lawyer will look for at the onset.

ADVISEMENT

Under California’s Vehicle Code 23612, you must be notified of the consequences of refusing to take a chemical test after arrest.  If you were not advised, or not properly admonished, of the consequences, you may have a strong defense to have your refusal excused.

The Chemical Test Admonition is printed on the reverse of the DS 367 (which is a form provided to law enforcement by the DMV). In general, when an officer arrests you, he/she should/will tell you, “You are required by state law to submit to a chemical test to determine the alcohol content of your blood,” followed by some type of breath/blood offering. If you appear to be a refusal, implied refusal, or indecisive refusal, the officer would turn to the DS367

The DS 367 reads as follows:

1. You are required by state law to submit to a PAS (DUI Probation) or other chemical test to determine the alcohol and/or drug content of your blood.
2. a. Because I believe you are under the influence of alcohol, you have a choice of taking a breath or blood test.
b. Because I believe you are under the influence of alcohol and drugs, you have a choice of taking a breath, blood, or urine test.
c. WHEN APPLICABLE: Since the breath and blood tests are unavailable, you are deemed to have given your consent to chemical testing of your urine.
d. WHEN APPLICABLE: Since you need medical treatment, your choice is limited to _____________test(s), the only test(s) available at__________.
3. If you refuse to submit to, or fail to complete a test, your driving privilege will be suspended for one year or revoked for two or three years. A second offense within ten years of a separate violation of driving under the influence, including such a charge reduced to reckless driving, or vehicular manslaughter, or a violation of §23140 VC, which resulted in a conviction, or separate administrative determination that you were driving with a BAC of 0.01% or more while under age 21, or a separate administrative determination that you were driving with a BAC of 0.01% or more while on OUT probation, or a BAC of 0.04% while operating a commercial motor vehicle, or a BAC of 0.08% or more at any age, or you refused a test, will result in a two-year revocation. Three or more offenses within ten years of any combination of the above violations, convictions or separate administrative determinations will result in a three-year revocation.
4. Refusal or failure to complete a test may be used against you in court. Refusal or failure to complete a test will also result in a fine and imprisonment if this arrest results in a conviction of driving under the influence.
5. You do not have the right to talk to an attorney or have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the test.
6. If you cannot, or state you cannot, complete the test you choose, you must submit to and complete a remaining test.

NOT A DUI SUSPENSION, MUCH MORE!

The license suspension that comes with a refusal, is not a typical DUI suspension, the ramifications are;

If you were 21 years or older at the time of arrest and you refused or failed to complete a blood or breath test

·         A first offense will result in a 1-year suspension.

·         A second offense within 10 years will result in a 2-year revocation.

·         A third or subsequent offense within 10 years will result in a 3-year revocation.

If you were under 21 years of age at the time of being detained or arrested and you refused or failed to complete a PAS test or other chemical test:

·         A first offense will result in a 1-year suspension.

·         A second offense within 10 years will result in a 2-year revocation.

·         A third or subsequent offense within 10 years will result in a 3-year revocation.

RESTRICTED LICENSE

If you are convicted of refusing a chemical test, you are violating the state’s implied consent law and do not qualify for a restricted license whether it is your first offense or third offense

CONSENTING TO A TEST, POST-ARREST SHOULD NOT TO BE CONFUSED WITH THE PRE-ARREST BREATH TEST

It is critical whether the chemical test is before the arrest (pre-arrest) or after the arrest (post-arrest).

Once you’ve been arrested of suspected DUI and refuse to provide a chemical test you may face the additional enhancements to your DUI charges. As already stated, in California, a DUI refusal can be far more serious than a typical DUI charge.

However, if you refuse a preliminary alcohol screening (PAS), and/or a field sobriety examination, you will probably still be arrested, but there are no additional charges for refusing these pre-arrest tests.

WHAT IS THE DIFFERENCE BETWEEN THESE PRE-ARREST AND POST-ARREST TESTS?

The pre-arrest chemical test is called a Preliminary Alcohol Screening (PAS). A Preliminary Alcohol Screening is a breath test.  It is merely another field sobriety test, it occurs during the investigation, but before an arrest.  Refusal of a PAS cannot be used in your criminal case as evidence of driving under the influence.  However, if you do submit to a PAS, the results can and most likely will be used in your case as evidence that you were driving under the influence.

The PAS (Preliminary Alcohol Screening) breathalyzer is a voluntary test so long as you are over the age of 21 (underage DUI penalties are different), and you are not on probation for a prior DUI (stemming for a prior DUI Conviction).

California Vehicle Code 23612(h) states; A preliminary alcohol screening test that indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving a vehicle in violation of Section 23140, 23152, or 23153 is a field sobriety test and may be used by an officer as a further investigative tool.

California Vehicle Code 23612 (i) states further; If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. The person’s obligation to submit to a blood, breath, or urine test, as required by this section, for the purpose of determining the alcohol or drug content of that person’s blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the person’s right to refuse to take the preliminary alcohol screening test.

WHAT TO DO IF FACING A SANTA BARBARA DUI OR REFUSAL

Once arrested for DUI Santa Barbara is no different than the rest of California, and specifically in the eyes of the DMV. The consequences are real and harsh. Whether to refuse to submit/consent to a blood alcohol (BAC) test is a matter of choice, and there is no realistic legally sound advice or answer one way or another. If you have been arrested for a Santa Barbara DUI, Santa Barbara DUI Lawyer Kenneth M. Hallum offers a free case consultation. Call today 805-564-3101. Know your rights, options and defenses against drunk driving.

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About Santa Barbara DUI Attorney Kenneth M. Hallum:
As a DUI defense attorney, Kennnth Hallum is dedicated to an understanding of the art and science of California DUI defense with memberships in the California DUI Lawyers Association, the National College of DUI Defense, the National Association of Criminal Defense Lawyers, the California Public Defenders Association, and the State Bar of California.

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