Refusal

Refusals

When a person has been lawfully arrested for a DUI, they are mandated to take a chemical test. If a person refuses, his or her license will closest be confiscated by the law enforcement officer pursuant to their authority to do so in order to send the license to the Department of Motor Vehicles (DMV) for an Administrative Per Se (APS) hearing. The refusal will be utilized in a criminal case, as a “consciousness of guilt.” Additionally, evidence of the refusal can be used as a sentencing enhancement, thereby increasing the punishment if convicted for DUI.

The DMV receives notice of the refusal from the peace officer, along with the physical license. The DMV punishes refusals based on the number of times in 10 years the individual has refused to submit to a chemical test:

First-time offenders: Where a chemical test is refused, the DMV will suspend driving privileges for one year.

Second-time offenders: Where chemical test is refused, the DMV will institute a two-year revocation.

Third-time offenders: Where a chemical test is refused, the DMV will institute a three-year revocation.

Four + offenders: Where a chemical test is refused, the DMV will institute a four-year revocation.

The California means Code defines a refusal in Section 23577. This section states that if a person is lawfully arrested for a DUI and refuses a peace officer’s request to submit to, or willfully fails to complete, a chemical test(s), the court will impose penalties:

First-time offenders: DUI punishment will be enhanced by an additional term of imprisonment of 48 hours in the county jail

Second-time offenders: DUI punishment will be enhanced by an imprisonment of 96 hours in the county jail

Third-time offenders: DUI punishment will be enhanced by imprisonment of 10 days in the county jail

Four + Offenders: DUI punishment will be punished by imprisonment of 18 days in the county jail.

In a criminal trial, the refusal will be perceived as “consciousness of guilt” and the jury will be instructed of this in a special jury instruction. CALJIC states:

“If you find that the defendant was offered and refused a choice of a blood, urine, or breath sobriety test after [he] [she] had been made aware of the character of the tests and their purpose, that refusal is not sufficient, standing alone and by itself, to establish the guit of the defendant but it is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether defendant is guilty or not guilty. The weight to which this circumstance is entitled and whether or not that conduct shows a consciousness of guilt are matters for your determination.”

During sentencing, evidence of the refusal to take a chemical test will be utilized as a special factor justifying whether probation will be granted or not, and in calculating additional or enhanced terms and conditions of probation. It may be necessary to use additional time in jail if probation is not granted. Perhaps participation in a work furlough or work release program will be ordered. Enhanced terms of probation may include numerous hours of community service or CALTRANS work.

Where a person has refused to take a chemical test, and police have taken a blood test by method of a “forced blood draw,” then this counts as a refusal, already though the person’s blood alcohol content was measured. The U.S. Supreme Court decided that forced blood draws were constitutional if certain safeguards were followed in the seminal case, Schmerber v. California. Unfortunately, this gives law enforcement and the courts two bites at the same apple, whereby the person not only undergoes the indignity of threats and manhandling at the hands of police, but also gets enhanced penalties as stated above during sentencing.

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