In California, drivers arrested for suspicion of driving under the influence are often offered the choice between a breath test and a blood test. Since California is an "implied consent" state, motorists who choose not to submit to chemical tests could still be arrested for DUI, and they will have their driver's license suspended for an entire year without the option of getting a restricted license.
If you have been accused of DUI in Bakersfield, CA, Koenig Law Office is prepared to defend you in court and to give you legal guidance on what steps to take next.
California's Implied Consent Laws
Any driver who is lawfully stopped for driving under the influence in California must submit to a blood or breathalyzer test or a blood test under California's implied consent regulations. For the arrest to be considered valid, the officer who makes the traffic stop must have reasonable cause to suspect that you had been operating the vehicle while under the influence of alcohol or drugs. The reason you are required to consent to a blood or breath test after being arrested is so that the officer who arrested you can measure the level of alcohol in your blood.
The purpose of chemical testing is to quantify the amount of alcohol in your blood. They operate by measuring the quantity of alcohol in your system. California law outlaws driving a car with a blood alcohol content of 0.08% or above. Therefore, if chemical tests show that your BAC is higher than the legal limit of 0.08%, you'll be detained for DUI. The implied consent legislation in California also stipulates that you will be prosecuted for DUI if you refuse to take the test.
Generally speaking, California law gives you the option of submitting to a blood or breath test. But, you could be required to consent to a urine test when none of these options are available. In addition, some medical problems could make it hard to undergo a blood or breath test. People taking blood-thinning medications for heart conditions, for instance, are exempt from DUI blood tests. The same goes for people with hemophilia. They still have to submit to urine tests.
Also, keep in mind that even if you choose to submit to a test, the officer could still ask you to take the second one. For example, the officer can require you to submit to a blood test if you choose a breathalyzer test, and the other way around. This occurs if the responding officer has grounds to think you were operating a vehicle while drunk and believes the results of the second test would prove this.
The law enforcement officer will subsequently include in their report the data upon which they have founded their conclusions. If you refuse to submit to a blood, breath, or urine test, you will face several penalties for violating the implied consent statute. Among them are:
- Increased penalties
- A compulsory suspension of your driving license. No matter what the judge decides about your DUI matter, the suspension will go into effect
Pre-Arrest Preliminary Alcohol Screening (PAS) Tests
It is possible that you will have to take a hand-held PAS breath test after being pulled over on suspicion of DUI but before being placed under arrest. A Preliminary Alcohol Screening test is essentially a breathalyzer test conducted at the roadside. It's among the several field sobriety tests you could have to take, including the finger-to-nose test. These tests serve to provide the authorities with more information to assist them in determining if or not to detain you for driving under the influence.
If you choose not to submit to a PAS breath test, you won't be penalized unless one of the following applies to you:
- You are under 21 and have been accused of driving under the influence
- You are currently on probation for a prior conviction of driving under the influence
Be aware that failing to take a PAS test may not be acceptable in court, provided you're not a driver under the age of 18 or aren't on probation. It's important to keep in mind, though, that if you consent to the tests, the results could be used to prove that you were guilty of DUI.
The Implications of Refusing a Breath Test Following an Arrest
If you decide not to submit to a DUI test and are found to have violated the implied consent laws as a result, there are essentially two possible penalties that you could face. The penalties include:
- Lost driving privileges for a specific period. If you have never had a DUI before your driving privileges will face a one-year suspension. After another DUI conviction, the suspension of your driver's license will take effect for two years. Offenders with a third DUI conviction will have their licenses suspended for three years. DUI offenders who commit a fourth offense or more will additionally have their license suspended for three years
- Face additional consequences on top of the standard DUI sanctions
The following are some of the increased penalties that could be levied against you:
- If this is your first DUI offense, you might spend an extra 48 hours behind bars. You will additionally be required to attend a DUI program for no less than nine months, rather than the standard three months
- Repeat violators within 10 years after the first offense will receive an extra 96 hours of jail time
- A ten-day mandatory jail sentence is added for repeat offenders.
- DUI offenders who are convicted a fourth time or more will have to serve a further 18 days behind bars.
It should be noted that when you lose the license as a result of refusing to take a chemical test, you will not be entitled to a restricted driving license for the duration of the suspension. You can avert this dreadful consequence by choosing to take the test. That's because even though you had consented to take a blood/breath test and the BAC was higher than 0.08 percent, you could have qualified for a limited license.
Reasons a Law Enforcement Officer Could Ask You to Submit to a Blood Test
An officer could request that you submit to a blood test for DUI in one of three circumstances. The circumstances include:
There is a Suspicion That the Driver was Impaired By Drugs
A police officer may ask you to submit to a blood test if they think it will show if you have drugs in your system. Your remarks, physical evidence of drug usage, or objective indications of being impaired can all help to create a reasonable belief that you are under the influence.
Suspicion of a Felony DUI
When conducting a test for DUI, the police can use forced blood draws. This occurs if they have reasonable suspicion that you have committed a felony DUI but are unable to immediately secure a warrant. If you have been convicted of driving under the influence of alcohol or drugs or a wet reckless more than three times in the previous ten years, a conviction for driving under the influence of alcohol or drugs will be deemed a felony. Additionally, it's a felony if it results in harm and you've got at least one prior felony DUI charge.
A Warrant was Issued for the Test
If a law enforcement officer has a warrant, they could request you to submit to a blood test. The judge issues a legitimate warrant. It gives proper legal permission to conduct chemical tests under certain conditions.
What Steps Will Be Taken If the Patient Requires Medical Attention Prior to Test Administration?
There are situations where you could be legitimately detained on suspicion of DUI. However, because you need immediate medical care, you're first sent to a medical facility, where some chemical examinations cannot be performed. Alternatively, you could be taken to a hospital where specific blood, urine, or breath samples can't be administered. In this situation, you have the option to select from among the tests offered at that establishment. In this situation, the law enforcement officer will inform you of the examinations that the hospital offers.
Information You Should Expect From Law Enforcement
The law enforcement officers conducting the DUI tests should follow the established protocols and clarify any facts. The information should be easy to grasp so that you are aware of your entitlements and the importance of the procedures that you will be going through. The key information law enforcement should provide you is:
- If you don't take the needed tests, you run the risk of having your driver's license revoked
- You have complete discretion over which test you submit to
- Failure to conform to the test conditions results in a DUI penalty increase
- You cannot confer with an attorney about what kind of test would be most accurate before consenting to the DUI tests
If there was a lack of information before the testing procedure began, you can bring up the matter in court and ask the judge to take your situation into account. If you do this, you would be able to escape sentence enhancements since the testing procedure was not clear, which meant that you were unable to fulfill the criteria. If the court thinks your case is strong, they will take the evidence into account when imposing the penalties.
The DUI Chemical Testing Procedures
Understanding the chemical testing process for drunk driving as specified by the laws of California is essential. This is so because it enables your lawyer to investigate all avenues for defending you against the accusations.
Parties Authorized to Conduct DUI Chemical Tests
Blood samples for BAC testing can be drawn only by the following individuals per California VC 23158:
- Registered nurses
- Licensed physicians and surgeons
- Licensed nurses
- Individuals who have received a legitimate phlebotomy technician certificate under California BPC 1246
- Professional clinical lab scientists and clinical lab bio analysts with the appropriate credentials
- Licensed paramedics in response to a police officer's request
- Unlicensed laboratory workers governed under California BPC Sections 1242, 1246, and 1242.5 respectively
The breathalyzer test is exempted from this restriction. Only when a law enforcement official demands that a paramedic obtain a blood sample to calculate the BAC level does there need to be an emergency for the paramedic services. Certified paramedics aren't required to take blood samples for BAC testing unless they have been granted permission to do so by their superiors.
Additional Tests Upon Request
You can have any of the above-mentioned individuals conduct the DUI blood test at your own expense. This involves any additional testing that a law enforcement officer can request to be carried out. The findings of the test would be made accessible to you or your attorney after the test administration is completed.
Defenses to DUI Test Refusal Charges
A professional defense attorney can assist you to fight these allegations even though the consequences of refusing to undergo a breath or blood test could be severe. If you're accused of refusing a blood alcohol test while driving, your attorney could be able to make a case on several different defenses. They include the following:
The Arrest Was Illegal
This is a common defense argument for DUI test refusal charges. You can't be found guilty of the charges if your lawyer can prove that the officer who detained you made mistakes when initiating the arrest. This is because any errors would make the detention illegal. For example, if the officer did not have a reasonable justification to stop you or apprehend you, the arrest would not be legal. Furthermore, if the defendant was not legally detained, he/she did not submit to a chemical test based on implied consent. This legal strategy could result in the dismissal of your entire DUI case.
The Officer Misled the Defendant About the Repercussions of Refusing The Test
An arresting officer should inform the accused of their right to decide between a blood or breath test before proceeding. The warning should be simple and easy to understand. The officer should also explain to the accused the potential consequences of refusing to take the DUI test. The provision requiring implied consent is inapplicable if the notice was unclear or confusing.
If you are arrested for suspicions of drunk driving, the implied consent statute is more likely to have played an integral part. An experienced DUI defense attorney can examine all the evidence in the case and challenge the officer's conclusions.
The Defendant Did Not Resist Chemical Testing
An accused person can use this as an argument in court if he/she did not refuse to submit to chemical testing. However, the bar for determining the rejection is quite low. The arresting officer is under no obligation to provide the defendant with a second chance to submit to the test. Additionally, a DUI test refusal can be considered if the accused doesn't blow a sufficient amount of air into the breathalyzer.
Lack of Capacity
In certain situations, you could be able to use this legal argument if you were unable to give your consent or provide sufficient blood or breath samples for the test. Your inability to take the test should be due to circumstances beyond your control. So, being under the influence of alcohol or drugs is not a viable defense for refusing to consent. However, a brain injury or a medical condition, like epilepsy, would offer a solid defense.
The Implied Consent Act Is Applicable To All California Drivers
All motorists in the state of California are subject to implied consent legislation. This applies to both California residents with a legitimate California driving license and non-residents with an out-of-state license.
When new California drivers get their license for the first time, they declare that they are aware of and agree to abide by the implied consent statute. In essence, you would have become part of the legal compact with California State by getting a driving license. In this contract, the motorist consents to chemical tests and gives up their right to object to arbitrary search and seizure operations.
The motorist is granted the right to operate an automobile in exchange for his or her assurance that he or she will consent to the chemical testing. A defendant would have breached their legal agreement and consequently violated the law requiring implied consent if he or she refuses to submit to chemical testing. Violation of the implied consent laws carries serious consequences.
Most motorists can't recall ever getting into a legal agreement with the State of California. Some can recall the agreement but forget its conditions. Also, most motorists who are arrested for DUI crimes are residents of other jurisdictions. As a result, they could be unfamiliar with California's stringent DUI chemical testing regulations. However, the implied consent statute applies to any motorist in California who operates a vehicle. Being unaware of the law is not a valid defense argument.
Because of this and the severe penalties for violating the legislation, arresting authorities are required to explicitly inform motorists of their obligations. Additionally, they should warn motorists of the potential consequences of violating the law. The entire implied consent law stipulates that law enforcement officers should inform motorists of what is required of them by the law.
A defendant’s refusal to submit to a DUI chemical test should be deliberate and “knowing” to be applied against the defendant. Knowing entails being aware of the fact that you're refusing a chemical test. Additionally, it implies that you should be aware of the implications of your actions.
The defendant's refusal should also be deliberate. This implies that the law enforcement officer ought to be able to determine with some degree of objectivity that the accused person declined to take the test. The defendant should also be able to understand what the law enforcement officer is doing both physically and mentally.
Most motorists are unaware of their right to an attorney's presence when determining whether to submit to blood or breath chemical testing for DUI. The fact that two separate laws contrast with one another can make matters more confusing. California residents have been aware for many years that individuals have the right to legal representation before providing any information to law enforcement.
The United States Supreme Court made a ruling on several requirements in the landmark case of Miranda v. Arizona. One of the rules states that a law enforcement officer should first inform an arrested person of his or her right to seek legal representation before conducting a custodial interview or interrogation with the accused.
Since the court made the verdict in 1966, all jurisdictions have made it customary to anticipate that those who have been detained would be advised of their Miranda Rights. The Fifth Amendment to the United States Constitution guarantees citizens this protection. As a result, the majority of drivers mistakenly believe that they will be automatically protected by the guidelines of this amendment.
California's implied consent law contrasts with the Miranda rule. When you get your California driver's license, you voluntarily relinquish your right to an attorney before determining whether to take a blood or breath test. Therefore, if you're legally taken into custody, you should consent to a blood or breath test without first seeing a lawyer.
The Implied Consent Legislation Also Covers Other Fields of Law
You should note that the implied consent law is a broad legal notion so there is no room for misunderstanding. Therefore, in addition to arrests for drunk driving, it has many other uses. For example, the following situations are likewise covered by implied consent:
- Court procedures—In a courtroom, any party should be allowed to raise objections to the admission of a particular piece of evidence. Any party that fails to object within the specified period has implicitly waived their right to object
- First Aid—Most states have rules that allow medical professionals to apply implied consent while treating a seriously injured person who is unable to respond
The applications of implied consent differ from state to state. If you have any questions about a situation that applies to you, speak with a lawyer.
Find a DUI Attorney Near Me
If you are facing DUI charges in Bakersfield, CA, Koenig Law Office can work with you to put forth a solid defense and avoid sentence enhancements. Call us today at 661-793-7222 to speak to one of our representatives.