California DUI Refusal law has the “implied consent” rule.  If you drive in California, and are lawfully arrested for a California 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).

There are a number of defenses in refusal cases.

DMV’s Driver Safety Manual outlines the Refusal Hearing issues.

Once arrested for DUI, the police officer is supposed to advise the 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 body afteryou have been lawfully arrested for a California DUI.

• The hand-held breath test gadget is optional if you are over 21 &  not on DUI Probation.

“After” a lawful arrest for 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.

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

Why? These are the basic 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 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]  California 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.