DUI - Refusing THE CHEMICAL TEST
Riverside, San Bernardino, Los Angeles & Orange County DUI Criminal Lawyer & Attorney
In California, there is an “implied consent” law which requires that, after being arrested for a DUI, you must provide a blood or breath sample to determine what your blood alcohol level, if under the influence of alcohol, was at the time of driving. Likewise, a blood sample may be required to determine if you were under the influence of drugs, or both, at the time of driving.
Specifically, the implied consent law
states the following:
"Any person who drives a motor vehicle is deemed to have given his or
her consent to chemical testing of his or her blood or breath for the purposes
of determining the alcoholic content of his or her blood, if lawfully arrested
for any offense allegedly committed in violation of [the California DUI laws]."
What most people do not know, and are often not told, when they are in the middle of a DUI investigation, is that this test must be done after he/she is arrested. As previously mentioned, an investigating officer will often times ask a DUI suspect to breathe into a portable breath testing device before he/she has actually been placed under arrest. This is known as a preliminary alcohol screening or “PAS” device. While the officer is supposed to tell you that this is an optional test, he/she often omits that fact and simply asks you to blow into the device. The possible impending arrest for a DUI is a very scary thing and many to many people it goes so quickly that they do not pause to ask if they have to do the things the officer is asking of them. Likewise, some people feel intimidated and think they have to do all the things the officer is requesting. As a result, if they have already submitted to a PAS test, when again asked to perform another breath or blood test later, some people will refuse, stating that they already did one earlier. That person will encounter harsher potential penalties as a result of this refusal.
In many Southern California counties,
police agencies have begun using what’s
known as an “EPAS” (evidentiary preliminary
alcohol screening) device. The
EPAS can be utilized for either the
preliminary alcohol screening that
is optional, or the evidentiary chemical
test that is required. Your
experienced and knowledgeable WILL & WILL,
LLP DUI defense lawyer will be able
to tell in which mode this device was
utilized if it was available in your
case. We can further discuss/explain
the differences after you contact us
to potentially represent you.
Under the California State implied
consent law, you must provide
a breath or blood sample after you
have been told you are under arrest
and/or placed under arrest. Any
person who is arrested for DUI and
subsequently refuses a chemical test
(blood or breath) will still be charged
with DUI, but will also be charged
with a "refusal enhancement" as
well. Statutorily, the refusal
enhancement can increase the DUI penalties
by imposing additional, and much more
jail time on the person arrested. These
are additional headaches that you don’t
need. However, if you find yourself
in this situation, your DUI lawyers
at WILL & WILL, LLP can help you
by providing the best possible defense.
A good DUI defense attorney will fight
the refusal allegation. The refusal
may be refuted at both the DMV hearing
and in the criminal courts as well. If
it is not refuted, the DMV will seek
to automatically suspend your license
for a year and the courts will force
you to spend a lot more time in jail
or doing community service, cal-trans,
electronic monitoring, etc… At
WILL & WILL, LLP, our team of former
prosecutors and experienced DUI defense
attorneys are skilled at fighting refusal
allegations and obtaining excellent
results for our clients.
