San Diego DUI Lawyers Blog
California has an implied consent law, which requires a driver that is lawfully arrested, suspected of driving under the influence, to submit to a chemical test. The tests that are typically offered for suspected alcohol intoxication is a breath and blood test. A blood test is usually offered for suspected drug intoxication. Occasionally, a urine test may be offered if it believed the driver is under the influence of drugs and is unable to give a blood sample for medical reasons, or the blood and /or breath test is not available.
The officer is only required to give you one chance to complete the test. If you refuse, but then change your mind, or you fail to pick one of the tests offered, that can be considered a refusal.
If you refuse, the police may forcibly draw your blood if they obtain a warrant or they can show exigent circumstances that justify the blood draw without a warrant. In addition to the administrative penalties through the DMV regarding your privilege to drive, there are also enhanced criminal penalties for refusing to submit to a chemical test.
For a first DUI with a refusal enhancement, an additional 48 hours in jail will be added to the penalty. In addition, instead of the 3-month First Conviction Program, the 9-month program will be ordered. With a second drunk driving conviction within 10-years, 96 hours in jail is added. For a third driving under the influence conviction within 10-years, 10 additional days in jail are added to the sentence. And, lastly, for a fourth or subsequent DUI conviction within 10-years with a refusal, the enhanced penalty is 18 additional days in jail.
If you refuse the chemical test, and the officer does not forcibly draw blood, it will be more difficult for the prosecuting attorney to prove you were under the influence at the time of driving. Often, the prosecutor only looks at the test results and makes a decision on how to charge and negotiate the case. Without the results, the prosecutor can only consider the driving pattern and any other field sobriety tests that were done. However, if the case goes to trial, the prosecutor usually requests a jury instruction that explains the refusal may show you had consciousness of guilt. However, the refusal itself cannot prove guilt and it is up to the jury to decide the meaning and the importance of the refusal.
If you have been charged with drunk driving and refusing to submit to a chemical test, call the Law Offices of Susan L. Hartman today for your free phone consultation, (619-260-1122). There may be defenses in your case that can lead to a dismissal or reduced charges!