Refusal Alert!
If you refused to take a breath test or blood test at the police station when you were arrested for DUI, even if you tried blowing into the breath machine, you face a one-year suspension of your license with absolutely no chance of getting a restricted license to drive to work during this suspension. If you have prior DUIs then you face a longer suspension also with no chance of getting a restricted license:-
- A 2-year revocation is imposed for a second offense (within 10 years)
- A 3-year revocation is imposed for a third or subsequent offense (within 10 years).
You must win your DMV hearing in all refusal cases to get your license back and avoid this strict punishment. The courts have no power over your license in refusal cases which means even if you go to trial and win, it will not affect your license status. You must win your DMV hearing to get your license back.
Please note, a refusal to take a mandatory chemical test at the police station is different from a DUI checkpoint refusal to breathe into the handheld breathalyzer device at the roadside which is an optional field sobriety test. See breath machines FAQ.
Implied consent law
California law says that anyone with a California license driving in the state of California has given their implied consent to taking a chemical test if a police officer suspects they have been drinking and driving. If a police officer requests that you take a breath or blood test at the police station to determine your blood alcohol level, then you must take a test.
This means that if you are pulled over by a police officer and he thinks you have been drinking alcohol you get to choose but you must either take a breath test at the police station or submit to a blood test and give a sample of your blood to determine how much alcohol is inside your body. If a breath or blood test is not available, you must provide a urine sample. By having a license you have already consented to take this chemical test. (Unfortunately, no one knows about or understands this implied consent law. See California Veh Code 23612).
Consequences of a refusal
If a police officer pulls you over and suspects you have been drinking and driving, and he says you must take a breath or blood test and you refuse to take a breath or blood test you face some very serious punishment for refusing to take a chemical test. By refusing to take a test, you face:-
- A one-year license suspension of your license with no chance for a restricted license to drive to work. That’s one year of no driving at all!
- In court, you also face greater punishment such as a 9-month DUI class instead of a 3-month DUI class normally ordered for a first-time DUI
- You possibly face 48 hours in jail for not taking a chemical test.
There have been cases where people have tried blowing into the breath machine and when no result is obtained, officers sometimes get impatient, accusing you of not blowing hard enough, and they say that you have refused to take a test without telling you that you face a 1-year license suspension and a minimum of 48 hours in jail from the court for refusing to take a test.
How to save your license
If the officer accuses you of refusing to take a test, the only way to save your license from being suspended for one year is to request a DMV hearing and to win this DMV hearing. You are entitled to a DMV hearing even if you refused to take a test. In a refusal case, the DMV has complete control of your license. This means even if you have a jury trial for your DUI and the jury finds you not guilty of the DUI it will not change the outcome of the DMV hearing concerning your refusal to take a test.
If you are being charged with a Refusal of a test by a police officer, you are facing a one-year suspension of your license and additional punishment in court. It is imperative that you immediately request a DMV hearing to try and save your license from being suspended for one year.
Control of your license
The courts have no power over your license in refusal cases. The DMV hearing completely controls what happens to your license in a refusal case: if you win the DMV hearing your license will be returned and will not be suspended for one year. If you lose the hearing your license will be suspended for one year and you are not eligible for any restricted license that would allow you to drive to work. It is a one-year hard suspension allowing no driving at all not even to work.
So Refusal cases are very serious and you must get a DMV hearing to fight these allegations.
