When is a Refusal not a Refusal?

In the State of California, when a person is lawfully arrested for a DUI, that person is legally under an obligation to submit to a chemical test. The Vehicle Code gives the suspect the right to choose either a blood or a breath test. If the suspect refuses to submit to a test, the refusal has ramifications for the defendant in court as well as increasing the length of suspension from the DMV.

For the court, a refusal can be considered "consciousness of guilt". This means that it may be considered evidence of guilt in a DUI case if the defendant willfully refused to submit to a test. The idea being that the defendant wished to avoid giving evidence against him self because he knew that he was impaired by alcohol or was over the limit.

However, a refusal to submit to a test does not mean that the defendant should be considered automatically guilty. On the contrary, the law clearly says that a person cannot be convicted of DUI based on a refusal alone. It depends on the totality of the evidence. A refusal is one piece of that evidence. A defendant's explanation for the refusal becomes relevant, as does the reason for the traffic stop, the defendant's objective symptoms of impairment and his performance of field sobriety tests.

For a refusal to submit to a test to be considered as "consciousness of guilt", the defendant's explanation for the refusal needs to be addressed. This begs the question; "When is a refusal not a refusal?" For example, if a DUI suspect is improperly admonished by the arresting officer, such that the officer induced confusion in the mind of the suspect, this should not be considered a refusal. If a suspect believes that he has a right to consult with a lawyer before deciding which test to take, the arresting officer must admonish the suspect that he has no such right and must choose a test. If the officer fails to inform the suspect of this, so that the suspect refuses based on a misunderstanding of his rights and obligations, this should not be considered a refusal.

If a defendant is convicted of DUI and the jury finds that he also willfully refused to submit to a test, the refusal becomes an enhancement on penalties mandating a jail sentence of at least 48 hours and a nine month alcohol education class. However, this only applies if the refusal is "willful". For example, if a defendant attempted to submit to a breath test, but was unable to blow enough air into the machine, this may be a failure to submit to a test for the DMV mandating a year suspension, but it should not be considered a willful refusal by the court.

In a refusal case the rules with the DMV are very different. A defendant may be suspended for a year if he refuses or fails to submit to a test. The defendant's explanation for the refusal may be accepted at court so that the jury acquits or the judge strikes the refusal enhancement, but this does not affect the DMV and the available explanations or excuses for the DMV are very limited.

If you are facing a DUI prosecution in Los Angeles or Orange County based on an allegation that you refused to submit to a chemical test, please call us for a free case evaluation.


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