People charged with DUI often wonder if they could have refused to take a breath or blood test. We provide the following information to clear up any misunderstandings regarding your rights and obligations when pulled over on suspicion of DUI. If you are being charged with a DUI, call Ozols Law Firm today for a free consultation.DUI Refusals have been getting a lot of press lately because of the 2013 Missouri v. McNeely, 133 S. Ct. 832 – Supreme Court case, so it is probably a good idea to clarify what this decision really means.
California VC 23612 is the “implied consent law”. The implied consent law basically says that when you get your drivers license, if an officer believes you are under the influence and you are lawfully arrested, you agree that you are consenting to take a chemical test, either blood or breath. The problem is some people either don’t know this or they decide not too. The officer must advise him or her of the available choices (CVC 23612(a)(2)) then the driver must be given a choice between the available tests because that is what he has impliedly consented to.
When an individual refuses, the officer needs to read part of a form that is called a DS-367 that explains all of the penalties, for example the DMV will suspend your license for a year.
In the past, if you refused the officers could basically tie you down and force you to give blood. That is actually how they would do it, with several officers there and you handcuffed to a gurney.
After the new McNeely ruling, if you resfuse, it seems that officers need to obtain a warrant before they take your blood or breath. Now I know what you are thinking…a warrant a 2 a.m… that’s impossible… Well its actually not. The police have access to a telephonic warrant line where a judge will be assigned and will pick up the phone 24-7. In San Diego there will also be a prosecutor who is on call who will help to write the warrant for the judge to sign.
If you decide to refuse, then they get the warrant and then you willingly give blood, at that point it is to late. They count that first refusal against you.
The issue with all of this is that in the last couple months the warrants have not been granted as easily as expected. With any type of refusal though, the DMV will suspend your license for 1 year even though in your criminal case, the prosecutors have no real evidence to convict you.It is an interesting dilemma to think about. Some clients have risked it thinking no risk no reward, some cases have been dismissed in court and some have had to pay the 1 year suspension along with the court sanctions.
If you refuse to take a chemical test, there is a lot more to your case than you may think, and A LOT more law to go through. If you have been charged with a DUI, call San Diego Criminal Defense Attorney Alex Ozols for a free consultation.