Burbank DUI Refusals
Many defendants charged with DUI in Burbank also face the additional allegation that they refused chemical testing, and thus committed Burbank DUI Refusal. This is a unique aspect of DUI law and can be somewhat confusing to people not familiar with this particular area.
In proving Burbank DUI cases, law enforcement officers may observe all of the indicia of intoxication in a suspect, but they cannot be certain that a person was legally under the influence without first obtaining a breath or blood sample. Given the difficulties that would arise if officers had to obtain a warrant for such testing in every DUI case, Burbank DUI suspects are simply asked at the time of arrest to submit to chemical testing.
Testing, in various forms, is offered at different times of the Burbank DUI Process. Typically, as part of the Burbank DUI investigation, a driver is asked to breathe into a Burbank Preliminary Alcohol Screening ("PAS") device used by the investigating officer. Following a DUI arrest, the arrested driver will be asked to provide a breath or blood sample after being transported to the police station (or sometimes hospital).
Drivers arrested for DUI will always be asked to submit to chemical testing (except in extreme circumstances, such as when the DUI suspect is unconscious or severely impaired and unable to provide consent). Refusing to test can carry various consequences, depending on the circumstances and the nature of the test refused.
In California, it is a crime for driver to refuse chemical testing in the following circumstances:
- For drivers who are already on criminal probation and are subject to search and seizure provisions AND for drivers under the age of 21, they must comply with request to provide a breath sample on a PAS device after a traffic stop. Other drivers not subject to these conditions who are over 21 can legally refuse the PAS test.
- All drivers who have been arrested on suspicion of DUI in Burbank HAVE TO provide a breath or blood sample for testing. Refusing to submit will add an additional allegation of Burbank DUI Refusal to any Driving Under the Influence charge that is eventually filed. Additionally, a urine test may be required if there is a suspicion that the driver is under the influence of drugs.
Sometimes, what is and is not considered a Burbank DUI Refusal is not clear-cut. A Burbank DUI Refusal can be as obvious as a driver flatly refusing to provide a blood or breath sample when asked and admonished by the arresting agency. However, there may be situations in which a driver verbally agrees to test but takes actions to avoid actually testing, such as pretending to blow into the device and asking numerous questions to cause a delay. In these situations, law enforcement may deem that such actions constitute a Burbank DUI Refusal.
For a Burbank DUI Refusal allegation to stand, it is required that the DUI suspect be warned of the consequences of refusing to test, specifically that such Refusal would result in a charge of DUI under California Vehicle Code Section 23152(a) in addition to separate enhanced penalties for the Burbank DUI Refusal. Also, a driver must be warned that Refusal will result in a driver license suspicion with the DMV. If the arresting officer or agency failed to provide this admonishment, the individual cannot be accused of Burbank DUI Refusal.
A DUI suspect must be conscious and understand the admonishment. If they are too impaired or otherwise unable to understand the admonishment, there is a strong argument that they did not refuse testing.
Other issues may arise that could challenge the legitimacy of a Burbank DUI Refusal allegation. Lengthy delays in testing caused by law enforcement, and not by the driver, do not provide grounds for a Burbank DUI Refusal allegation. Additionally, there may be medical conditions or issues that could affect a driver's ability to provide a suitable sample. If such issues exist, an experienced Burbank DUI Defense Attorney may be able to refute the Burbank DUI Refusal allegation.
Recently, the U.S. Supreme Court has issued a decision that prevents law enforcement officers from forcibly takinG blood samples from DUI suspects if they do not have a warrant. This decision in Missouri v. McNeely supersedes prior California law which allowed such warrantless blood draws. This means that while the blood sample obtained via a warrantless draw may be suppressed, a Burbank DUI Refusal allegation (and corresponding VC 23152(a) DUI charge) may still be applied even if there was an illegal forcible blood draw.
A Burbank DUI Refusal allegation will assess penalties in addition to those assessed for the DUI charge in court. If someone is convicted of a DUI charge, and a Burbank Refusal allegation is upheld, that person would face additional jail time. For first time DUI offenders, this translated into 48 hours in jail. For people who have one prior DUI, the jail time would increase to 96 hours. And third time DUI offenders also facing a Burbank Refusal allegation may serve at least 10 days in jail, in addition to any other jail sentence required by the underlying DUI charge.
Additionally, the California Department of Vehicles imposes lengthier suspensions for Burbank DUI Refusals. First time DUI offenders who refuse testing will lose their license for a full year with no ability to obtain restricted driving privileges. Drivers with prior DUI related suspensions on their driving record and who refuse testing face an additional year suspension on top of whatever the suspension would normally be.
Due to the additional penalties that Burbank DUI Refusals carry, it is important that you have an experienced Burbank DUI Refusal attorney representing you before the court and the DMV. Burbank DUI Refusal Attorney Michael Kraut is experienced at fighting Burbank DUI Refusal allegations and the litigating the legal issues that may be connected. As a former deputy district attorney with over 14 years of prosecutorial experience, Mr. Kraut is highly regarded by judges, prosecutors and law enforcement professionals.
For more information about the Burbank DUI Refusals, and to schedule your free consultation, contactBurbank DUI Refusal Attorney Michael Kraut at the Kraut Law Group located at 2600 West Olive Avenue, 5th Floor, Burbank, CA 91505. Mr. Kraut can be reached 24/7 at 888-334-6344 or 818-563-9810.