Vehicle Code 23612 (a) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.
THE LAW: California Vehicle Code Section 23612 makes it clear that a person who drives a motor vehicle has to submit to a chemical test of his blood or breath after being lawfully arrested for a DUI. A driver who is arrested for a DUI in Los Angeles can choose either breath test or a blood test, but, when one test is not available, the driver has to submit to the remaining available test. Only people who are either afflicted by hemophilia or take anticoagulant medication under the direction of a doctor for a heart condition are exempted from the blood test. (California Vehicle Code Sections 23612(b) -(c)). Those people have to submit to a breath test. Further, if both blood and breath tests are not available, the driver has to submit to a urine test (CVC 23612(d)). That affects all people, including those with listed medical conditions.
CONSEQUENCES OF A REFUSAL ON A DRIVER’S LICENSE: Usually, the most serious consequence of being arrested for a DUI with a refusal in Los Angeles is the effect such arrest have on the driver’s license. With the exceptions of few jurisdictions, most prosecutors will strike the refusal to submit to a chemical test in a plea bargain. Thus, the mandatory jail time, will usually never be imposed and a refusal allegation in the criminal court will, usually, not effect a disposition. In contrast, at a DMV hearing, if a refusal is alleged and proven, the driver license will be suspended for one year when there are no priors. With one prior, the DMV will revoke the license for 2 years and with 2 priors, the period of revocation in increased to 3 years. Further, current law permits restricted license after some actual suspension for any DUI, as long as some conditions are imposed, such as ignition interlock is installed. DUI with refusal is not part of that statutory scheme and therefore, DUI with a refusal can not get a restricted license.
California State Legislature passed laws penalizing refusals to submit to chemical tests. Los Angels DUI attorney has tremendous experience arguing that DUI suspects should be permitted to refuse to submit to chemical tests. If a person refuses to submit to a chemical test (after being lawfully arrested for a DUI and told of the consequences), he or she will likely face one-year license revocation by the DMV if this is the first refusal. Subsequent refusal to submit to chemical tests can cause two or even three years suspensions or revocation. Also, if refusals to submit to chemical tests is plead and proven in a criminal court, Los Angels DUI defendant must be sentenced to 48 hours in the county jail in addition to any other jail sentenced mandated by law. For example, a first offense DUI conviction does not require any jail time, but a first offense DUI conviction with “a refusal”, requires 48 hours of jail.
Los Angeles DUI Lawyer prefers refusal cases to non-refusal cases for criminal prosecution because often in refusal cases police has less evidence of alcohol impairment and therefore it is easier to defend. Ironically, although California penalizes refusals to submit to chemical tests, federal law is not as strict on refusals because many constitutional grounds allow refusals – for example, a refusal to answer police questions based on the right not incriminate himself. Chemical tests that a prosecutor wants to introduce at a trial, should only be introduced if the blood/breath sample was taken in compliance with 4th amendment to the US Constitution.
To prevent the prosecution from introducing chemical tests results, a “search and seizure” motion can be filed – requiring prosecutor’s burden to prove an exception to the warrantless seizure of blood. (See Missouri v. McNeely 133 S.Ct 1552). McNeely court stated that “compelled intrusion beneath the skin and into veins to obtain blood for use in a criminal investigation implicates most personal and deep-rooted expectation of privacy” and “…[s]earch warrants are ordinarily required for searches of dwellings…absent an emergency, no less could be required where intrusions into the human body are concerned…even when the search was conducted following a lawful arrest”. Yet, despite this strong Supreme Court language, California insists on the prosecution of refusals to submit to chemical tests. Los Angeles DUI lawyer can successfully litigate Los Angeles DUI through search and seizure motion based on the conflict between California and Federal law, arguing that Vehicle Code 23612 (a) violates federal law and the refusal should not be introduced as evidence of guilt.
For example, Los Angeles DUI lawyer can argue to the jury: “how can you find a defendant guilty of the refusal, when the Supreme Law of this land allows refusals”. If a person has an absolute Federal right not to incriminate himself and chose refusals to chemical tests, how can that be punished in State court? (Supreme Court in 1973 said that warrantless search of the person is reasonable only if it falls within a recognized exception (United States v. Robinson, 414 U.S. 218, 224). This argument in conjunction with the lack of evidence due to refusals to submit to chemical tests can be used by Los Angeles DUI lawyer to defend against a refusal DUI in Los Angeles.
On June 23, 2016, the Supreme Court in its decision Birchfield v. North Dakota decided to complicate the refusal laws by permitting a warrantless breath test but not blood test after a DUI arrest. In California, the arresting officer usually will offer either a breath or blood test and will inform a DUI suspected driver that a refusal to submit to either test will result in enhanced punishment in court and loss of license at the DMV. The suppression motion will be successful when officer threatens jail time unless defendant consents to blood or breath test. Birchfield decision does not apply to DMV hearing because the DMV hearings are not affected by search and seizure constitutional arguments. The court engaged in very detailed analyses of DUI offenses by providing research of national average of refusal cases (20%) and by providing statistics that on average one person dies in a DUI accident each hour and by relying on FBI documents showing numbers of DUI arrest exceeding 1.1 million people in 2014.
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