Proven Approach With Results Forged Through Experience

Mark L. Deniz, Esq.

San Diego DUI a focus on a “refusal”

by | Jan 14, 2014 | DUI Cases |

Over the last year I have dealt with several San Diego DUI refusal cases. In theory, when someone is arrested for a San Diego DUI they are supposed to submit to a test. It sounds clean and reasonable. How about when a person is already home and there was a call to police of a possible DUI vehicle that matched your description? How about when police stop four guys about to walk into a restaurant not knowing who was the driver. Are these people forced to take a San Diego DUI chemical test? Really?

It needs to be examined when determining how the officer decides the individual is the driver.  They walk up and see the individual in the drivers seat….no brainer.  Let us take a look at San Diego DUI refusals.

California DUI Refusal law has the “implied consent” rule.  If you drive in California, and are lawfully arrested for a San Diego DUI, you are impliedly deemed to have given consent to the chemical testing of your blood or breath, or even urine (but urine is usually provided in cases when you are suspected of being under the influence of a drug).

Once arrested for San Diego DUI> the police officer is supposed to advise the San Diego DUI arrestee of California’s requirement of a chemical test of blood or breath.  The chemical test admonition form used for this purpose states:

1.  You are required by state law to submit to a PAS (DUI Probation) or other chemical test to determine the alcohol and/or drug content of your blood.
2.  a. Because you are under the influence of alcohol, you have a choice of taking a breath or blood test.
b. Because I believe you are under the influence of alcohol or drugs, you have the choice of taking a blood, breath or urine test.
c. (when applicable) Since the blood and breath test is unavailable, you are deemed to have given your consent to chemical testing of your urine.
d. (when applicable) Since you need medical treatment, your choice is limited to  __________ test(s), the only test(s) available at ________________________.

3. If you refuse to submit to, or fail to, complete a test, your driving privilege will be suspended for 1 year or revoked for 2 or 3 years. A second offense within 10 years of a separate violation of driving under the influence, including such a charge reduced to reckless driving, or vehicular manslaughter, or a violation of C.V.C. section 23140, or a separate administrative determination that you were driving with a blood alcohol content of .01 percent or more while under the age of 21, or .04 while operating a commercial vehicle, or a blood alcohol content of .08 percent or more at any age, or refusing a test will result in a 2 year revocation. Three or more offenses within 10 years of any combination of the above violations, convictions or separate administrative determinations will result in a 3 year revocation.

4. Refusal or failure to complete a test may be used against you in court. Refusal or failure to complete a test will also result in a fine and/or imprisonment if this arrest results in a conviction for driving under the influence.
5. You do not have the right to talk to an attorney or have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the test.
6. If you cannot, or state you cannot, complete the test you choose, you must submit to and complete a remaining test.

After this is supposed to be read, the driver’s statements and/or any refusal behavior or actions can be reported by the peace officer in blank lines provided by this DMV form.

Will you take a breath test? _______________________

Will you take a blood test?  _______________________

“The driver refused to submit to or failed to complete any test.  The refusal or failure was indicated by the following statements or actions:  ___________________________.”

You must submit to a chemical test to determine the alcohol and/or drug content in your bodyafter you have been lawfully arrested for a California San Diego DUI.

  • The PAS is optional if you are over 21 &  not on San Diego DUI Probation.

After” a lawful arrest for San Diego DUI is the key word.

The hand-held breath test gadget called the “Preliminary Alcohol Screening (PAS)” test that may be offered at the side of the road before you get arrested is not mandatory under this law. The PAS test is considered a field sobriety test. FST’s are just supposed to be investigatory tools to assist the officer in deciding whether to arrest you for DUI. But make no mistake, the officer will try to use the results of this hand-held test against you.

Here’s the crazy thing:  submitting to the PAS and then refusing to submit to a subsequent chemical test of blood or (big) breath test (machine) after your arrest will usually be deemed a refusal.  So you could face a 1 year suspension even if you blow in the roadside breath test gadget thinking you may have satisfied your requirement to blow.

Although the PAS test is optional for adults, it is mandatory for those under 21. If you are under 21 and suspected of DUI, you are also deemed to have given consent to the PAS and an additional blood, breath, or (where applicable) a urine test.

What Qualifies as a DUI “Refusal”?

While the notion of “refusing” a chemical test may seem relatively simple, it really is not.

In reality, there are a number of times you unknowingly invite a so-called refusal allegation:

  • You do not always have a true choice of tests.

San Diego DUI arrests typically deal with alcohol. Breath and blood tests are ordinarily the first and often only San Diego DUI tests offered.

Why? These are the basic San Diego DUI tests which test for alcohol consumption.  Urine tests are unreliable in testing alcohol.  So a urine test would only be used for alcohol detection if neither a breath test nor a blood test were available (which is almost never).

If your breath test result is lower than whatever the officer expected, you may additionally be asked to submit to a blood or urine test. Blood and urine tests are used when you are suspected of driving under the influence of drugs or a combination of drugs and alcohol.

You are legally entitled to have the officer perform the test you request.  However, if the officer tells you which tests you will be given, you don’t necessarily have the right to insist on a different one.  You cannot choose a urine test instead of a breath or blood test if you’re suspected of an alcohol-related DUI. Demanding a urine test (which old-timers may remember used to be a choice) will be construed as a refusal.

If you are a hemophiliac or are on certain heart medications, you are exempt from taking a blood test. If a breath test is not available (but it usually is), you may be asked to provide a urine sample.  You may not have the right to demand that the officers find a breath test machine. If you don’t submit to the urine test, you will be charged with a refusal.

Finding a breath test machine in San Diego County would be pretty easy as all 3 jails in San Diego, Santee and Vista have them.  All CHP offices have them, in San Diego, Oceanside and El Cajon.  Most San Diego Sheriff’s Department offices have them, throughout San Diego County.  San Diego Police Department DUI units often have the big breath test machine in their trunk.  Most agencies share and share alike.

Practically speaking, unless your San Diego DUI defense attorney can otherwise establish, you only have a choice of tests when a choice is presented to you.

  • You Often Only Have One Opportunity to Submit to a Test

“One offer plus one rejection equals one refusal”. [Dunlap v. Department of Motor Vehicles (App. 5 Dist. 1984), 156 Cal.App.3d 279]  San Diego DUI law holds that you only have one chance to submit to a test.  If you initially refuse to provide a blood, breath, or urine sample but later change your mind and agree to take one, it may be too late. The officer is under no duty to provide you that second chance. Yet your lawyer could successfully argue that you cured your initial refusal under certain circumstances.

  •  Curing a Refusal is Possible

When you are offered a test in the street, it becomes problematic.  Legally, unless you are under 21 or on DUI probation, you do not have to blow in the hand-held gadget on the street.

Yet if the officer explains you must submit to a chemical test in the street, you may look around and think:  “Wait a minute, there’s no (big) breath test machine or blood technician out here in the street.”

Subsequently agreeing and submitting to a chemical test should arguably not be deemed a refusal once you finally arrive at a location where there is actually a breath test machine or blood phlebotomist.

In real life, people often hesitate.  Humans frequently change their minds. In Re Smith, 115 Idaho 808, 770 P. 2d 817 (Ct. App 1989) allowed a driver to change his mind and recant the refusal.  Practical courts reasonably understand this.

Courts have adopted differing views as to whether or not a driver should be allowed to cure his prior refusal and under what circumstances can a driver cure or rescind a prior refusal.  Respondent urges the Department to adopt the more flexible standard which has been adopted by several other states including Idaho, New Mexico, and Kansas.  In Standish v. Dept. of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984) the Supreme Court of Kansas adopted a five part test to determine whether a driver could legally effect a cure or rescission.

We believe that the administration of the test should be encouraged and the person arrested should be given every reasonable opportunity to submit to it.  For this reason, we hold that an initial refusal may be changed or rescinded, and if rescinded in accordance with the following rules, cures the prior refusal.

To be effective, the subsequent consent must be made:

(1)  within a reasonable time after the prior first refusal;

(2)  when a test administered upon the subsequent consent would still be accurate;

(3)  when testing equipment is still readily available;

(4)  when honoring the request will result in no substantial inconvenience or expense to the police; and

(5)  when the individual requesting the test has been in the custody or the arresting officer and under observation for the whole time since arrest.

Standish v. Dept. of Revenue, 683 P.2d 1276, 1280 (1984)

California considers similar principles, especially when there is not even a blood

or breath test at the time of the initial refusal, i.e. in or on the street.

“There was no available test pending at the time of the initial refusal, and thus even the admitted delay in consenting to the test did not make any difference under all the circumstances, with respect to the main purposes of the statute (obtaining an effective test and keeping impaired drivers off the road).  Since the purposes of the statute are not mainly punitive in nature, the Department’s interpretation of these facts is unduly strict.”  [Eberle v DMV (DCA4 – 2/23/07) 2007 Cal. App.Unpub. EXIS 1487, citing Ellis v. Pierce, (1991) 230 Cal.App.3d 1557, 1561]

Eberle v DMV (DCA4 – 2/23/07) 2007 Cal. App. Unpub. LEXIS 1487 was a San Diego refusal case handled by San Diego DUI criminal defense attorney James Bishop. San Diego’s Court of Appeals essentially held:

When a person arrested refuses chemical test to Cop No. 1, but a delay occurs and person is handed over to Cop No. 2 who is clueless about any chemical test refusal.

Cop No. 2 says, “Will you submit to blood or breath?”  Person then says, “Blood.”  And blood is duly drawn.

At the San Diego Administrative Per Se hearing, DMV abused its discretion by concluding Respondent refused. On writ, trial court says: “Not really a refusal.”

DMV appeals, Court of Appeals says trial court used independent judgment and had substantial evidence to overrule DMV Hearing Officer. But the court noted: “He admitted that in his own testimony. But the problem I have with it is this was no test being administered or likely to be administered then. Perhaps if the officer had pulled out the . . . device and he said no I’m not going to blow into that, it might be a little stronger case for a refusal. But this was no ability, this was no intent at that time to give a test. And that’s why I’m concerned, is the time of this and the location. Saying out on the street corner, no, I don’t want to take any of your tests versus being in a lab room saying you have to choose between that breath machine or a blood draw and saying no way, I’m not going to give you anything. To me those are two different situations. The timing and location [are] significantly different.”

  • Silence can be interpreted as a Refusal

A fundamental problem is that the subject statute (Vehicle Code Section 23612) does NOT require the arrestee to (A) state a Choice of tests, or even (B) answer any questions.

One’s silence in the face of repeated requests to submit to a chemical test is considered a refusal.  [Lampman v. Department of Motor Vehicles (2d Dist. 1972), 28 Cal.App.3d 922]

  • Failing to Complete a Test can also be considered a Refusal

When you are advised by the arresting officer of your duty to submit to a chemical test, he/she specifically advises you that:

  1. Your failure to submit to, or
  2. Your failure to complete a chemical test will result in additional penalties, including jail time and a driver’s license suspension.
  • Illustrations:

If you chose a breath test but cop claims you deliberately did not blow hard enough to produce a sample, your actions may be considered a refusal.  But because San Diego DUI law says the refusal must be a “willful chemical test refusal,” if you could not provide a sufficient breath sample due to asthma or insufficient lung capacity, this may overcome the refusal allegation.

If you try to submit to a urine sample but are unable to pee and provide a sufficient amount of urine, you may be deemed a refusal.

Either way, the San Diego DUI officer should give you one more opportunity to complete a different test.  But if you were unable to succeed on the second attempt, that would probably be your last chance to do so.

In the criminal court forum, a San Diego DUI jury must decide if you in fact “willfully refused” to submit to a chemical test.  A California jury will be given a special jury instruction with respect to your alleged chemical test refusal. The judge will instruct the jury that they may (but are not required to) infer that you refused because you knew you were guilty of DUI. [Judicial Council of California, Criminal Jury Instruction Number 2130]

The purpose behind the adoption of the Implied Consent law is to encourage those who are suspected of DUI to submit to a chemical test in order to determine their blood alcohol level.  “The State has a strong interest in obtaining evidence from a chemical test because ‘the inference of intoxication arising from a positive blood-alcohol test is far stronger that that arising from a refusal to take the test’” State v. Suazao, 877 P.2d 1088 (N.M. 1993), citing South Dakota v. Neville, 459 U.S. 553, 564, 103 S.Ct. 916, 922, 74 L.Ed.2d 748 (1983).  Your attorney should be prepared to argue the purpose was ultimately satisfied by virtue of obtaining a blood sample.

Penalties and Punishment if You Refuse to Submit to a Blood or Breath Test?

If you refuse to submit to a chemical test in San Diego, both DMV and San Diego California Superior Court will take action.

If you refuse, DMV can automatically suspend your license unless your lawyer requests a hearing within 10 calendar days.  4 issues are determined at the DMV hearing:

  1. Did the arresting officer have reason to suspect that you were San Diego DUI?
  2. Were you lawfully arrested?
  3. Were you properly advised that your license would be suspended for one year or revoked for two or three years if you refused to submit to or failed to complete a chemical test?
  4. Did you willfully refuse to submit to or fail to complete a chemical test after the officer asked you to do so?

If your attorney obtains an Order of Set Aside after this hearing, your driving privileges will not be suspended.

If your lawyer is unsuccessful, your punishment will include:

  • A one-year driver’s license suspension for your first San Diego DUI offense,
  • A two-year license revocation for your second San Diego DUI offense within ten years, or
  • A three-year license revocation for your third San Diego DUI offense within ten years.

San Diego DMV takes action, if any, separately and independently from what happens in your DUI court case.

San Diego DUI Court Refusals

  • Reduced Charges and the DMV

Suppose you plead guilty to a reduced charge, but your attorney lost the DMV hearing. Your DMV license suspension remains. If the DUI lawyer prosecutor dismisses the refusal allegation but still has you plead guilty to a San Diego DUI, your suspension remains.

DUI attorney Prosecutor is unwilling to reduce your charge and requires you to either (1) plead guilty to San Diego DUI with the refusal enhancement, or (2) take your case to trial and lose, a conviction will result in the following sentence:

  • An additional 48 hours in a county jail for your first San Diego  DUI offense and a minimum 9 month alcohol program;

This DUI School requirement is in lieu of the 3 month program that is imposed for San Diego  DUI convictions that are not refusals and less than .20%.

  • An additional 96 hours in a county jail for your second San Diego DUI offense within ten years,
  • An additional 10 days in a county jail for your third San Diego DUI offense within ten years, or
  • An additional 18 days in a county jail for your fourth or subsequent San Diego DUI offense within ten years.

These penalties are simply “enhancements” that will be imposed in addition and consecutive toany other court penalty in DUI court.

Are Forced Blood Draws Legal?

Yes, if:

  1. That the circumstances require prompt testing,
  2. That the arresting officer reasonably believed that you were driving under the influence, and
  3. That the test was administered in a medically approved manner in accordance with a lawful arrest.

A blood test is the only chemical test that could forcefully be applied.  San Diego DUI arrestees have too much control over how they provide a breath or urine sample to force either of those chemical tests. testing is required.

If you believe you are not guilty of San Diego DUI and are therefore being unjustly arrested, you are still required to submit to a chemical test if you have been “lawfully” arrested.

A “lawful arrest” simply means that the officer had “reasonable cause to believe” that you were impaired by drugs and/or alcohol at the time you drove.

How does a DUI Attorney Defend a Refusal Charge?

Some Common Defenses available to San Diego DUI attorneys, include:

  • No “lawful” arrest

When the San DIego DUI cop never had “probable cause” to stop or contact you in the first place or you didn’t have “reasonable cause to believe” you were San Diego DUI, then there was an unlawful arrest. An unlawful arrest will result in a dismissal of your DUI and/or refusal charges.

If the officer didn’t actually see you drive, if you were sitting in your parked vehicle without moving and with only the engine running, a San Diego DUI judge could decide it was an unlawful arrest. [Mercer v. Department of Motor Vehicles (1991), 53 Cal.3d 753] Similarly, if the San Diego DUI officer arrested you when there was insufficient evidence you were under the influence (or “impaired” as some San Diego DUI prosecuting attorneys claim), this could prove to be an unlawful San Diego DUI arrest.

  • Not DUI (driving under the influence)

If you are acquitted of San Diego DUI charge and it was therefore determined that you weren’t driving under the influence, whether you “refused” is not an issue.

The refusal allegation will be dismissed together with the San Diego DUI charge.

  • The San Diego DUI officer failed to advise you of your obligation to submit to a chemical test

California law requires that the arresting officer must advise you as to the consequences of refusing to submit to a chemical test. Failing to do so is a fatal flaw for the prosecution and will result in the dismissal of your refusal allegation.

  • Incapacitated and not able to consent

If your medical condition rendered you incapable of submitting to a test, your refusal can’t be held against you. [Hughey v. Department of Motor Vehicles (App. 3 Dist. 1991), 235 Cal.App.3d 752]

But neither voluntary intoxication nor any other self-induced condition will excuse your refusal.

  • The “refusal admonition” was confusing or misleading

The refusal admonition must be given in a clear and unambiguous manner. If it isn’t, that may explain and justify your refusal. If, for example, the officer merely advised you that your refusal “could” (vs. “would”) result in a license suspension/revocation, it should refute the refusal. [Decker v. Dept. of Motor Vehicles (1972), 6 Cal.3d 903]

  • Officer-induced Confusion can excuse a Refusal

Contact San Diego DUI attorney Mark Deniz for further information.

California DMV Manual states on page 12-51:

12.109 Breath Test Equipment Absent or Malfunctioning

“A driver arrested for excessive BAC will be offered the breath or blood test, except
when taken to a medical facility; the breath test may not be available. The driver must
be told by the officer that the breath test is unavailable.

When a test is chosen and it is not available, through no fault of the driver (e.g.,
malfunctioning breath testing equipment, blood technician not available), the driver
must submit to the remaining test. If the driver refuses to make a choice, or fails to
complete the last remaining test offered, an APS refusal action is warranted.”

Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges. Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case. Contact the Law Office of Mark Deniz now for a free case evaluation at 858-751-4384 or send an email to [email protected].