After a driver has been arrested for driving under the influence, the next step in the DUI process is chemical testing, in which the driver is asked to submit to either a breath or blood test. In California, drivers are given the option of taking a breath or blood test when lawfully arrested on suspicion of DUI. Refusing to take a chemical test will still result in DUI charges as well as a yearlong driver’s license suspension. To ensure that drivers are informed of their rights and responsibilities, the law requires that all drivers arrested for DUI receive admonitions from the officer. Failure to provide an admonition or providing an improper admonition may invalidate any subsequent test refusal.
The Refusal AdmonitionAn officer must inform a driver arrested for DUI about his or her testing options and about the consequences for test refusal. Typically, the officer will read the driver a prepared admonition specifically describing the driver’s rights and options. This admonition is often audio or video recorded and later provided as part of the DUI discovery process. After reading the admonition, the officer will ask the driver if he or she wants to take a breath or blood test if the driver is suspected of driving under the influence of alcohol. Drivers who are suspected of driving under the influence of drugs are not given the breath test option as there is no breath test that can measure for the presence of drugs. Drivers are not given the opportunity to consult with an attorney before selecting a test.
Challenging the Refusal AdmonitionDrivers who are charged with DUI refusal may be able to challenge the refusal allegation if the refusal admonition was incomplete or improper. Courts have found that drivers must be given every opportunity to comply with testing. This means that if the driver refuses one form of testing, he or she must be given the other testing option. If the officer did not do this, the driver may be able to challenge any subsequent license suspension with the DMV or refusal allegation in court.
In addition, the officer must be very clear in the admonition provided to the driver. Courts have found that an admonition informing a driver that test refusal “could” result in a yearlong license suspension, rather than saying it “would,” is improper.
There also may be cases where a driver may not understand the officer’s admonition. The driver may suffer from hearing loss or deficiency or another medical condition that prevents them from understanding the officer’s admonition. In many DUI collisions cases, the driver may have suffered a concussion and may not be aware of what he or she is being told. In these cases, the driver’s attorney may be able to challenge any subsequent refusal allegation.
Consequences of DUI RefusalThe officer must inform the driver about the consequences of DUI refusal. Drivers who refuse testing will still be charged with a DUI offense in addition to a refusal allegation that will add mandatory jail time to any underlying sentence. In addition, the DMV will issue a yearlong driver’s license suspension to first time DUI offenders who refuse chemical testing. The driver would not be eligible for a restricted license during the suspension period.
If you or someone you know have been charged with a DUI offense, it is imperative that you meet with an experienced DUI attorney as soon as possible. Michael Kraut is a former Deputy District Attorney with over 14 years of prosecutorial experience who is highly skilled at fighting DUI cases both in court and before the DMV.
For more information about DUI and what an officer must tell a DUI suspect, Mr. Kraut can be reached 24/7 at (323) 464-6453.