Refusal Cases

Refusal Cases in DUI Arrests

In California, drivers arrested for DUI must provide a blood or breath sample for chemical testing under the state’s Implied Consent Law. Refusing this test can lead to serious consequences both with the Department of Motor Vehicles (DMV) and in court. A refusal, as defined by police and prosecutors, can be express (a direct refusal) or implied (when the driver does not explicitly refuse but still does not agree to take a test, or just does not speak).

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Implied Refusals

Not all refusals are clear-cut. For example:

• A driver may attempt to take a breath test but fail to provide a sufficient sample due to illness or injury. If the officer doesn't offer an alternative test (like a blood test), this could be misinterpreted as a refusal, but may be excused.
• In cases where a driver initially refuses a breath test but is then subjected to a blood draw without further objection, this may still be considered a refusal by the DMV and/or the court.  

If a driver is physically unable to refuse due to injury or unconsciousness, a refusal may also be excused. Additionally, if an officer fails to explain the consequences of refusal, the refusal may be invalidated.

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Consequences of Refusing a Chemical Test

A refusal carries serious penalties with both the DMV and the courts. At the DMV, a first-time refusal leads to a one-year license suspension with no option for a restricted license. Multiple refusals increase the penalties:

• Second offense: Two-year suspension.
• Third offense: Three-year suspension.
• Fourth offense: Four-year license revocation, regardless of refusal.

In court, refusal can be used as a justification for a longer DUI school and other sentencing consequences.  

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Jury Instructions on Refusal

In court, juries are instructed that refusal may imply consciousness of guilt, but they must also consider any valid reasons for the refusal. For instance, if a driver was injured, confused, or asked for legal counsel, the refusal may be excused. Prosecutors often argue that the refusal indicates guilt, but juries may not convict solely based on refusal without considering all the circumstances.

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Forced Blood Draws

If a driver refuses chemical testing, police can sometimes force a blood draw under specific circumstances, such as after a lawful arrest and with reasonable belief of intoxication, and the approval of a judge. While this is allowed under the Schmerber v. California ruling, failure to follow proper procedures can lead to a suppression of the blood test results. A skilled DUI attorney can challenge forced blood draws if constitutional rights are violated during the process.  Even if the arresting officer is authorized to force a blood draw, the blood must still be done in a “medically approved manner.”