Refusals and DMV
A finding by the DMV that you willfully refused to take a test or that you were forced to take a blood test results in the following periods of suspension:
- First Offense DUI: One Year - No Restriction Eligibility
- Second Offense DUI: Two Years – No Restriction Eligibility
- Third Offense DUI or More: Three Years – No Restriction Eligibility
Refusals and Court
- First Offense DUI: 48 Hour Jail Enhancement and 9 Month Alcohol Program
- Second Offense DUI: 96 Hour Jail Enhancement
- Third Offense DUI: 10 Day Jail Enhancement
- Fourth Offense DUI: 18 Day Jail Enhancement
Refusals and/or Forced Blood cases represent unique and challenging opportunities for the defense. An experienced Orange County DUI Attorney can represent you before the California Department of Motor Vehicles and not only defend against the suspension of your driver’s license but also prepare defenses for your Orange County DUI Court case.
The DMV must prove the following issues at a chemical test refusal hearing:
- The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of CVC §§23136, 23140, 23154 (effective 1/1/09), 23152, or 23153;
- The person was placed under arrest or, if the alleged violation was of CVC §§23136, 23140, or 23154 (effective 1/1/09), the person was lawfully detained;
- The person was advised that a refusal would result in a suspension or revocation of the driving privilege; and
- The person refused or failed to complete the chemical test or tests after being requested to do so by a peace officer.
See: CVC §13558(c)(1).
Proof of actual driving is no longer required in a chemical test refusal license suspension action even though the DMV must still prove actual driving to sustain an adminstrative suspension action.
Actual driving must also still be established to sustain a refusal enhancement allegation in a criminal prosecution. Since a chemical test refusal is not itself a criminal offense, the trier of fact only reaches a finding on it if it has already been determined that the accused actually drove a motor vehicle while under the influence.
The advisement that must be given to support a refusal finding in Court is much more detailed than that required for DMV purposes and requires that the arrestee be also advised that the refusal can be used against them in Court to establish a consciousness of guilt and that failure to submit to or complete a test will result in a fine and mandatory imprisonment if they are convicted of DUI.
Important Issues that an experienced OC DUI Lawyer can use to prevent your license from being suspended.
- The Officer gave you erroneous advise as to the lengh of the suspension.
- The Officer gave you erroneous advise concerning your right to refuse a preliminary screening test.
- The Officer confused you as to whether the suspection was mandatory.
- You Had a Physical or Mental Condition That Effected Your Ability To Understand Your Obligations To Submit To A Test or The Consequences of Refusing To Submit.
- The Officer failed to give you a choice between breath or blood tests or failed to give you a choice of a urine test if they suspect that you where under the influence of drugs or the combined influence of drugs and alcohol.
- The Officer failed to honor reasonable requests like being shown the credentials of the blood technician prior to the blood draw.
- You did not in fact refuse to submit to or fail to complete a chemical test.
- Your refusal was based upon you having a heart condition, hemophilia or being on blood thinners.
- The Officer failed to allow you to take a breath test because he did not have a breath machine in the police car.
Important Issues that an experienced OC DUI Lawyer can use to prevent you from being found guilty of the refusal enhancement in Court.
- The Officer failed to advise you that your refusal can be used against you in Court.
- The Officer failed to advise you that you would be subject to mandatory imprisionment if you refuse and are convicted of DUI.
- The Officer failed to advise you that you would be subjected to increased fines if you are convicted of DUI.
- The officer failed to advise you that you would be subject to a mandatory 9 month alcohol program if convicted of DUI.
- The Officer failed to advised you that your license would be subject to a longer restriction if you were convicted of DUI.