If a police officer pulls you over with a reasonable suspicion that you were driving under the influence, you can be compelled to submit to a chemical test. This procedure aims to measure the amount of alcohol or any other intoxicating substance in your blood. Vehicle Code section 13353 is a punishment section for those who refuse to submit to a chemical test. Any driver, who refuses to give his blood or breath sample for chemical test must know the possible consequences of such decision.
California Vehicle Code 13353
VC 13353 (a) If a person refuses the officer’s request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, and that the person had refused to submit to, or did not complete, the test or tests after being requested by the officer, the department shall do one of the following:
- Suspend the person’s privilege to operate a motor vehicle for a period of one year.
- Revoke the person’s privilege to operate a motor vehicle for a period of two years if the refusal occurred within 10 years …
- Revoke the person’s privilege to operate a motor vehicle for a period of three years if the refusal occurred within 10 years of any of the following …
Charges and aggravating factors
A first time chemical test refusal can lead to one year of driver’s license suspension. If you are accused of a second DUI refusal, your license can be revoked for two years. It does not matter whether you refused to complete a chemical test in a previous DUI. In other words, even if this is your first refusal but second DUI, you are facing the same harsh consequences of possible two years driver’s license revocation. VC 13353 requires license revocation for the second DUI when refusal is alleged. The punishment section for a refusal allegation also requires a two-day mandatory incarceration upon proof of a refusal allegation.
Driving on a suspended license can get you in serious trouble. If you license is suspended or revoked after a DUI conviction or a DMV finding of a “refusal” or driving with a blood alcohol over the legal limit, you can face new criminal charges. Not only you can face new criminal charges, but the police also is permitted to keep your car for 30 days after they decide that you are driving on a suspended license. Lastly, the police is also given an authority to sell your car under nuisance law if you are continue to driver on suspended or revoked license.
As commonly known, because DUI is a priorable offense, your record will be considered in punishment. As explained above, a second DUI with a refusal allegation may cause a two years license revocation. Additionally, a third DUI arrest with a refusal allegation will cause a 3 years license revocation. Please note that a prior for purposes of CVC 13353 is not only a DUI but also such offenses as:
- Wet reckless conviction under CVC 23103 per CVC 23103.5;
- Vehicular manslaughter convictions;
- Previous license suspension as a result of chemical test refusal or a DUI.
The refusal allegation can be alleged even if you were not driving. If a police officer has a reasonable believe that you were driving, he can make you submit to a chemical test. Even proving in court that you were not driving will not overturn a DMV license suspension or revocation.
VC 13353 for minors or DUI probationers
If you are under 21 or on DUI probation, the rules are much stricter for you. First of all, the legal limit of BAC is 0.01% instead 0.08% for other non-commercial drivers. Also, minors and probationers are compelled to go through a preliminary alcohol screening test (PAS) if police officer suspected you of impaired driving. The submission to the preliminary alcohol screening test (PAS) is not required if the driver is over 21 years of age and is not on a DUI probation.
Fighting the VC 13353 case
Defending a DUI refusal is often easier for a good defense attorney then defending a DUI because typically the prosecutor has less evidence of the violation. Commonly, the accusation of a DUI refusal is based on several criteria:
- Your driving (whether or not you were following traffic laws or driving erratically at the moment of detention);
- The Results of blood/breath tests (yes, many people will submit to some form of a chemical test such as PAS before deciding to refuse any chemical testing required by law);
- Results of field sobriety tests (as explained in many other posts, some studies show that the most field sobriety tests are extremely unreliable);
- Objective signs of intoxication (red eyes, blurred speech, diffused attention, smell of alcohol or any other substances such as marijuana etc.)
Based on that, the less information the police has, the better it is for you. In addition to lack of evidence, a good defense attorney will use the following elements to defend VC 13353 charges:
- Miranda Warning. A very commonly known legal consent requires the police officer to read you your rights after arrest. After that, driver has to reply that he understood everything said and is informed about his or her rights. If the officer questions the defendant without giving Miranda warning, any confession can be thrown out. The confession can be interpreted broadly, and include admission to driving and drinking. If the police officer read the chemical test refusal admonishment mechanically or confuses the driver, proving this in court can help DUI defense greatly.
- Forcing to submit to a blood test. Police has an ability to force a driver to submit to a blood test. Most police agencies have a policy not to force blood draw. If the officer injured the driver during forced blood test, this can help the driver to through out the results and possible get a dismissal.
- DMV specifics. In case of a DMV hearing, the consequences of a refusal are often a lot more stricter to the drivers, and the punishments are more severe because of a lengthy suspension without an ability to get a restricted license. Even if you changed your mind and agreed to a test after a refusal, DMV can ignore the consent and consider that as DUI refusal anyway. For that reason, it is often very helpful to get a good defense attorney for a DMV refusal hearing.
If you are arrested for a DUI, please call Los Angeles DUI Attorney to talk to someone who is qualified to help you defend your case. Los Angles DUI attorney is known for his dedication to his clients and his ability to get the best results for his clients in the most desperate situations. We offer great payment plans and can help you not only in court but also at the DMV. Our top Los Angeles DUI lawyer is able to provide quality defense at affordable price.
(818) 921 7744 Call anytime to get a free consultation with Los Angeles DUI Attorney.