DUI Refusal

Consequences of Refusal to take a test after an arrest:

In Kern County the Judges will impose a mandatory jail term after trial if the person charged with a DUI is found to have willfully refused to take a chemical test.  If a negotiated plea bargain is reached with the district attorney to strike the allegation then usually no additional jail is ordered.  Technically though the law does require enhanced penalties for a refusal to submit to a breath or blood test.  Such penalties often include a longer term DUI school (9 months or longer) and a higher fine.

A refusal could be alleged even if the person tries to take a breath test but cannot complete it.  In these circumstances, having a skilled DUI Attorney is imperative if the person has any chance of keeping his or her license.

The person alleged to be a refusal in Kern County should be advised that his or her refusal to submit to a test may be used against him or her in court. This is set forth in California Vehicle Code §23612(a)(4). See also the Supreme Court case of South Dakota v Neville (1983) 459 US 553, 564–566, (In this case the justices ruled that a refusal to take blood-alcohol test after lawful request is not act coerced by officer and is not protected by privilege against self-incrimination). See also the California case of Quintana v Municipal Court (1987) 192 CA3d 361, 366, (statute prohibiting defendant from refusing to submit to chemical test does not violate privilege against self-incrimination). However, an officer’s failure to give this advisement goes to the weight, not the admissibility, of the evidence.

What many people are unaware of is the fact that defense do exist to fighting a refusal case, both in Court and at the DMV.  For example, if the officer fails to properly explain the legal requirements to the person than the refusal may be thrown out.  Challenging the refusal allegation is extremely important if the driver wants to retain his or her license.  A formal hearing must be requested through the department of Motor Vehicles in a timely manner.

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