DUI Penalty Enhancment: Refusal to Submit to a Chemical Test
U nder San Diego County's implied consent laws, any person holding a valid drivers license or permit has "implied their consent" to submit to a drug and / or alcohol test by applying for and utilizing their driver's license and / or permit.
"Implied Consent" requires compliance with alcohol and or drug chemical testing of blood or breath at the request of a Police Officer, if arrested on suspicion of DUI.
The arresting police officer will inform you that you do not have the right to consult with an attorney before agreeing to a chemical test, nor to have an attorney present for such testing. This is often termed "The DUI exception to the Constitution" by persons within the DUI defense community.
*Note:Minors, or those under the legal drinking age of 21 years old, or any person subject to a specificl court order or condition of probation or parole, must submit to field sobriety testing AND the handheld preliminary breathalyzers used by police at roadside prior to taking a DUI suspect into custody.
If a person refuses to a submit to a chemical test mandated by "implied consent" laws, the arresting officer is required to inform the person that such refusal will result in automatic drivers license suspension or revocation, depending on the whether prior offenses or aggravating circumstances exist. The officer will immediately confiscate any driver's license or permit on the person at the time of the DUI arrest. The officer will then forward the physical driver's license and a copy of the driver's license suspension or revocation notice to the California Department of Motor Vehicles (DMV).
A Choice between a Blood or Breath Test?
When a driver is suspected of driving under the influence of drugs, or DUID, or a combination of alcohol and drugs, a blood test is adminstered. If the suspect happens to be a hemophiliiac or suffers from some other condition that would make a blood draw a poor choice, the officer will subect the defendant to a urine test.
If you are arrested for DUI and you could possibly be at or near the legal limit of .08%, most attorneys will advise you to take the breath test if given an option under these circumstances. If you are absolutely certain you have no alcohol or drugs in your system, a blood test may be a better option. Keep in mind that marijuana doubles its "shelf life" in your blood, and if you were an habitual pot smoker at one time, you might still test positive for THC many months after your last "puff". Most other drugs, such as cocaine and other inhalants, typically leave your system after 72 hours.
The law in California DOES still state that a person legally arrested for DUI is entitle to a choice between a breath or blood alcohol test, and that the arresting police officer is required to inform the defendant of both options prior to administrating the chemical test. If the defendant is incapacitated, or claims to be be incapable of performing or submitting to a specific test, the defendant shall submit to the remaining test.A person who opts for a breath test, or is first administered a breath test at the discretion of law enforcement, may be subsequently required to submit to a blood test. In other words, police are authorized to collect samples of both. If the officer does not find what he or she is looking for in your breath sample, they are allowed to pursue with a blood test.
If a person who is legally arrested on suspicion of DUI or a DUI related offense, but because of injury or need for medical care, is transported to a facility or hospital that is not equipped to administer the defendant's choice of bac tests, ie, blood, breath, or urine, the defendant's options will be legally limited to those available at the time and place of testing.
Breath alcohol tests have a higher margin of error and are known to be less reliable than blood tests, therefore easier to fight in court.
Forced Blood Draw in San Diego for DUI
A person who refuses to comply with the breathalyzer test option may be required to submit to a blood draw without violating the Fourth Amendment (People v. Sugarman (2002) 96 Cal.App.4th 210, 214-216) as long as there is probable cause to believe he was driving under the influence and the blood draw is performed in a reasonable, medically approved manner. (People v. Ford (1992) 4 Cal.App.4th 32, 35.)
The courts have consistently held that after a driver refuses to take any of the proffered chemical tests, he or she may not later retract the refusal to avoid the consequences of that refusal. (Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870, 873-874; Dunlap v. Department of Motor Vehicles (1984) 156 Cal.App.3d 279, 280-281). "[O]nce the suspect refuses to take one of the . . . tests, . . . there is no requirement that the officers thereafter give him a test when he decides he is ready." (Skinner v. Sillas (1976) 58 Cal.App.3d 591, 598; accord, Morgan v. Department of Motor Vehicles (1983) 148 Cal.App.3d 165, 170-171.)
If you refuse a chemical test, the police may opt to force a blood sample from you, and you will still incur additional punishment for refusing to submit to the chemical test, even if a sample is involuntarily obtained from you.
Forced Blood Draw in San Diego for DUI
A person who refuses to comply with the breathalyzer test option may be required to submit to a blood draw without violating the Fourth Amendment (People v. Sugarman (2002) 96 Cal.App.4th 210, 214-216) as long as there is probable cause to believe he was driving under the influence and the blood draw is performed in a reasonable, medically approved manner. (People v. Ford (1992) 4 Cal.App.4th 32, 35.)
The courts have consistently held that after a driver refuses to take any of the proffered chemical tests, he or she may not later retract the refusal to avoid the consequences of that refusal. (Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870, 873-874; Dunlap v. Department of Motor Vehicles (1984) 156 Cal.App.3d 279, 280-281). "[O]nce the suspect refuses to take one of the . . . tests, . . . there is no requirement that the officers thereafter give him a test when he decides he is ready." (Skinner v. Sillas (1976) 58 Cal.App.3d 591, 598; accord, Morgan v. Department of Motor Vehicles (1983) 148 Cal.App.3d 165, 170-171.)
If you refuse a chemical test, the police may opt to force a blood sample from you, and you will still incur additional punishment for refusing to submit to the chemical test, even if a sample is involuntarily obtained from you.
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