California is an implied consent state regarding DUI tests for suspected impaired drivers. This means that any driver lawfully arrested on a suspected DUI must agree to a breath test to determine their blood alcohol concentration. Having a California driver's license indicates that you have automatically given consent to a test to establish the alcohol concentration. We at the Orange County DUI Defense Attorney Law Firm are ready to represent you in court if you are facing DUI charges as well as advise you on the legalities surrounding BAC tests.
Understanding Implied Consent in California
As earlier stated, California is an implied consent state. This means that when you are lawfully arrested on a DUI suspicion, you must agree to take a breath test. Previously, it was mandatory to submit to a blood test as well, but the Supreme Court changed this. It further ruled that no one can be penalized for refusing to agree to a blood test unless the police have obtained a warrant for it.
A breathalyzer test is typically taken to determine your BAC levels in a DUI investigation. The law has set forth the legally allowed limits of alcohol in one's blood. An excess of this limit means one was intoxicated. When your BAC levels are beyond the limit, coupled with other symptoms of impairment, DUI charges can be leveled against you.
A legally arrested driver that refuses to submit to a breathalyzer test received penalties that may include:
- Getting your penalties increased in addition to the standard DUI penalties
- An automatic suspension of your driver’s license irrespective of your DUI case outcome
After the Supreme Court ruling to exclude mandatory blood tests, the only chemical test that a DUI suspect must submit to is a breath test. However, this is only mandatory following a lawful arrest. To make a lawful arrest, most law enforcement officers, after stopping a motorist, request them to submit to a form of sobriety test. It is important to note that one does not have to take the field sobriety test asked for, and no penalties will result from their refusal. Refusal to submit to a breath test once arrested and at the station is what will result in severe penalties.
Pre-Arrest Breath Test
As earlier stated, once you have been stopped for a suspected DUI, but before being formally arrested, the officer may ask you to submit to a preliminary alcohol screening (PAS) test. This is a type of field sobriety test (FST), just like the one for touching your finger to your nose.
However, one can refuse to submit to any FST with no consequences unless the individual is:
- Below 21 years of age
- Serving a probation sentence for another DUI conviction
When you are past the age of 21 and are not serving a probation sentence, you can refuse a PAS test. Equally, your refusal to submit to the PAS test will not be used against you in court to help convict you. If you submit to a preliminary alcohol screening, the results can be presented in court as evidence of your intoxication.
Consequences of Breath Test Refusal Following a DUI Arrest
When a person is accused of violating the implied consent laws, there are various penalties, as earlier discussed, that he or she would face. These are:
- If it is the first DUI offense, the driver will have the DMV automatically suspend their driver’s license for one year. With every subsequent DUI arrest and violation of the implied consent law, the suspension period increases. A refusal to comply with this law is taken to automatically mean that you were driving while intoxicated beyond the legal limit. The outcome of your DUI trial will not affect the decision of the DMV to suspend your driver’s license when you have violated this law.
- The defendant faces enhanced penalties to the ordinary DUI penalties that they would be sentenced to. These enhanced penalties would include:
If the offense is a first DUI, the defendant will be added 48 hours of county jail time, which is mandatory. Additionally, the period of attending a DUI school program will be extended from the typical three months to nine months for a first offender.
When you are arrested on a DUI charge for the second time in ten years, you will face an extra 96 hours of county jail time. This is in addition to the enhanced penalties as a second-time offender compared to a first time offender.
An arrest for a DUI offense for the third time in three years with implied consent law violations will call for an additional and mandatory ten days in jail. Also, this is in addition to third-time offender penalties.
In California, a DUI for the fourth time is prosecuted on felony charges. This means the penalties are more severe than for the other offenders. Additionally, when the offender refuses to submit to the implied consent laws, they automatically get 18 days of jail added to their sentence.
The Implied Consent Laws and Refusal of Chemical Tests in California
When evaluated regarding chemical tests, the implied consent laws raise a lot of questions. Previously, the implied consent laws applied to both blood and breath tests in California. In 2016, however, the Supreme Court ruled it unconstitutional to penalize a person for refusing to submit to a blood test, unless with a warrant.
Because of this ruling, defendants who refuse to take a chemical test in California may not be directly penalized. The court is left to decide on whether to give additional penalties or not.
When a Blood Test is Required in a DUI Investigation
The implied consent laws do not penalize an individual for refusing a blood test. However, there are several situations where the police will expect a suspect to submit to the test. These situations or conditions are:
- When the police have a warrant of arrest to obtain blood for testing
- When the arrestee is suspected of a felony DUI according to California law
- When the arrestee is suspected to be driving under the influence of drugs
When the police have a warrant to ask an arrestee to agree to blood testing, they can show it to them and ask them to comply. A warrant, in this case, is given by the judge who authorizes a chemical test to be carried out against the suspect in a DUI investigation. To get this warrant, however, the police must present a compelling argument before the judge, indicating why it is necessary to carry out a blood test. If the judge is convinced by their argument, a warrant is immediately issued, and the suspect is required to submit to the order.
Sometimes the police can forcibly draw the blood of a suspect for a chemical test following a DUI arrest. Two situations can warrant this to happen. These are:
- When the police suspect the arrestee has committed a felony DUI
- When a judge is not available to issue a warranty as fast as it is required.
Standard DUI offenses are typically misdemeanors. However, some instances would make a standard DUI to be charged as a felony offense. These situations include:
- When a DUI has resulted in injuries to others
- When the suspect has at least three prior DUI convictions or a conviction on wet reckless in the last ten years
- When the defendant holds a previous record of a felony conviction
When a Person is Arrested on a Suspected Drugged Driving
Driving under the influence means that a person is operating a vehicle while intoxicated by either alcohol or drugs. Driving while intoxicated is a crime in California, whether by narcotics or prescription drugs. When one is pulled over for any probable cause or a suspected DUI, the police can request them to agree to a field sobriety test.
Field sobriety tests, however, may not indicate if drugs intoxicate a person. A police officer may notice some indications that may cause him or her to suspect the driver to be intoxicated. The officer may engage in a conversation with the driver and notice their statements or how they talk. This can indicate if the driver is intoxicated by drugs, especially where the officer cannot smell alcohol. The driver can also display physical symptoms of intoxication like having glassy eyes or bloodshot eyes, among others. When an officer suspects drug intoxication, they may go further to investigate the presence of any tangible evidence of drugs or their use.
When an officer is satisfied that the various indications point towards drug intoxication, they will request the driver to submit to a blood chemical test to confirm their suspicions. When the arrestee refuses, the case is brought before a judge to secure a warrant demanding a blood test.
Legal Defenses for Violating the Implied Consent Law
People facing allegations of refusing to submit to a breath test after a lawful arrest often raise one popular defense strategy. They usually argue that their detention was illegal, claiming the officer targeted them.
In California, when an officer has no probable reason to stop a motorist, the arrest that ensures it is unlawful. For an officer to ask a motorist to stop, they must have been driving recklessly, or their driving indicated they were impaired. Violating a traffic rule is another reason a driver can be asked to stop. Disregarding a red light is a common offense that can get a motorist to be stopped. Other reasons could be a broken tail light or an expired license.
When a motorist is asked to stop because of any of these or other reasons, they should. If they refuse and drive off, they can be accused of evading a police officer. Once you are stopped for any of these reasons, you may display signs of intoxication that can prompt an officer to carry an FST on you. Should you fail the test, the officer can arrest you and take you for further investigation in the police station.
Remember, one does not have to submit to a field sobriety test and will not be penalized for it. However, this does not mean that you cannot be arrested and further investigations carried out. For instance, if you are stopped for reckless driving, you can be arrested on these charges. When the officers smelled alcohol on you, further tests may be ordered to establish if you are intoxicated.
Another lawful way a person can be arrested for a DUI offense is during a DUI checkpoint. Occasionally, different police departments can put a notice of an upcoming DUI checkpoint. The law requires the supervising officer to formulate a formula for how the vehicles will be stopped at the checkpoint. This is important to avoid a driver complaining that they were targeted and that the arrest was unlawful.
When an arrest is lawful, a motorist holding a California driver’s license is expected to submit to a breath test according to the implied consent laws. If they refuse, the above-discussed consequences then befall them.
However, if a motorist through their lawyer can show that the arrest was unlawful, then they cannot be tested to determine their BAC. An illegal arrest means consent was not given to carry out the breath test as is required under the implied consent laws. A successful argument in this line can result in the dismissal of the DUI case entirely. A successful argument in this line can result in the termination of the DUI case entirely. A successful argument in this line can result in the dismissal of the DUI case entirely.
Who does the Implied Consent Laws Apply to?
Every motorist in California is subjected to the implied consent laws. This means residents of California holding the state’s driving license and non-residents who are driving in California and hold an out of state driver’s license are equally subject to this law.
Suspension of Driver’s License
One of the consequences, when a person is arrested on a DUI suspicion, is the suspension of their license. In California, most people drive as a need for their survival. Going to school, work, or running errands, as well as taking care of your family, may require you to drive. In most places, public transport is unreliable and limited, making it unviable.
A refusal to comply with the implied consent laws upon a lawful arrest automatically leads to a suspension of your license. Some individuals disregard the law and drive even when their license is on suspension. If they are arrested and found out, they will be charged with the offense of driving with a suspended driver’s license. If a conviction is arrived at on this offense, the penalties are severe, with one of them being mandatory imprisonment.
Although a DUI arrest does not mean an automatic suspension on your license, a refusal to take a breath test after an arrest will lead to the automatic suspension. It is advisable to submit to the breath test after arrest because even with a suspended license, one can still enjoy driving privileges on certain conditions.
One of the goals of DUI lawyers for their clients is to avoid the suspension of their license. Unfortunately, when a person refuses to submit to a breath test, their lawyer cannot help them revoke the suspension unless the arrest was unlawful.
As earlier discussed, DUI crimes are priorable crimes in California. This means the penalties for each subsequent arrest within a ten-year window keep increasing. This does not only apply to court penalties but also DMV penalties. Below, we will discuss the various aspects of license suspension in California for first, second, and third DUI arrests or convictions.
First DUI License Suspension
A suspension of your license does not have to be automatic when DUI charges are brought against you. In California, when one is arrested on a DUI offense can fight against the suspension of their license successfully.
Following your first DUI arrest, there are three things that you should do to avoid license suspension. These are:
- Fight against your DUI charges in court and avoid a conviction
- Ensure to request for a DMV hearing within ten days upon your arrest
- After a lawful arrest, submit to a breath test according to the implied consent law.
When you are arrested for a first DUI offense, the DMV will impose a temporary suspension on your license. This is what is referred to as administrative per se violations (PAS). The temporary suspension is issued to enable the defendant to request a DMV hearing where he or she will try to persuade the DMV not to suspend the license. With the help of your lawyer, one can win in the hearing, although not many people do. However, if you fail to request a hearing within the given time, the DMV will automatically suspend your license.
The suspension period for a first offender is four months. However, if your suspension is because of refusal to submit to a breath test, the suspension is automatic. The period of your suspension is usually a year. This means that you will not be allowed to persuade the DMV against the license suspension. It is, therefore, to your advantage to submit to a breath test after arrest. This is because even when your BAC is above the legal limit, the suspension is four months as opposed to a year.
When one submits to have a breath test done, the results can show that they are not above the legal limit. Because of this, your license will not be suspended. However, if you initially refused a breath test, your license will be suspended regardless of the results that may later show you were within the legal limit.
Second DUI License Suspension
When one is facing a second DUI offense, they can get their license suspended either through a court process or by the DMV. In many cases, both the DMV and the court can impose license suspension with the defendant serving the longer of the two sentences. Just like in a first DUI, when one is arrested on a DUI suspicion, the arresting officer is required to take their driver’s license and submit it to the DMV. In the meantime, the suspect is issued a temporary license. This is meant to serve them for the period before the DMV hearing. If one does not request the DMV hearing within ten days of arrest, he or she will have their license automatically suspended.
If, after a breath test or blood test, your results show that you were within the legal limit, the temporary suspension on your license is lifted. However, if your BAC was above the legal limit, your license will be suspended for a year if you do not request and win a DMV hearing.
Unfortunately, refusing to submit to a breath test after being arrested does not help you. Instead, it increases your penalties. A refusal is taken to be an automatic admission of guilt. This means that your license will automatically be suspended for two years. When your license is suspended because you refused to consent to a breath test, it means you will not be able to have a hearing with the DMV over the suspension.
It is best to take the test because when your BAC is above the legal limit, your license will be suspended for a year, instead of two years. Additionally, when your license is suspended because of intoxication, you can apply to have a restricted license and keep driving. On the other hand, when a license is suspended due to refusal to take a breath test, you will not qualify for a restricted license.
Third DUI License Suspension
A third DUI arrest will also trigger a license suspension, just like in the first and second arrest. The DMV will temporarily issue a suspension on your license until the hearing of your DMV case to determine whether to suspend or not. If you lose the case, your license is suspended for a year. Fortunately, during this time, you can apply to have an IID restricted license and continue to drive.
Unfortunately, refusal to submit to a breath test will automatically lead to a suspension of your license for three years by the DMV. Refusing to submit to the test means that you cannot get a restricted license. Therefore, you cannot drive for three years.
Find a DUI Attorney Near Me
Violating California implied consent laws has severe repercussions. Your driving privileges could be suspended in addition to the penalties that you are likely to receive if you are convicted of a DUI offense. Instead of panicking when you are arrested on a DUI suspicion, the best thing is to call your lawyer first. This will help you avoid making mistakes that may enhance your penalties and deny your driving privileges. At Orange County DUI Defense Attorney Law Firm, we are experienced in DUI offenses and offer our clients excellent defense strategies depending on the situations of their arrests. Call our office at 714-740-7866, and let us help you fight these allegations.