DUI Refusal and Adminstrative Hearing in Los Angeles
A person who is arrested on suspicion of driving under the influence will be given the choice of taking either a breath or blood chemical test to determine the driver’s BAC. There may be circumstances where the driver does not select a test or takes step to avoid testing. In these cases, the police will treat the incident as a DUI refusal. A driver accused of DUI refusal will face heightened penalties in court and with the DMV.Refusal Allegation Enhancement
A driver who refuses testing can still be charged with driving under the influence under California Vehicle Code Section 23152(a) VC and can also face a refusal allegation enhancement, which adds mandatory jail time to the defendant’s sentence. For many drivers, the most severe result of a DUI refusal is that the DMV will suspend the driver’s license for a full year, during which the driver would not be able to get a restricted license.
When a driver is arrested for a DUI refusal, the DMV will be notified of the arrest and the driver is informed that the suspension would start in 30 days. The driver has ten days to contest the suspension and request an administrative hearing with the DMV. Usually, a driver’s attorney will handle this request and will ensure that a timely hearing request is properly filed.
The DMV will schedule an administrative hearing to determine whether or not the suspension is justified. For drivers who are accused of DUI refusal, this hearing is crucial. The hearing is conducted by a hearing officer from the DMV who is neither a judge nor a lawyer. The hearing officer may decide not to call witnesses and may rule based on what is written in the incident reports. For many refusal cases, the hearing officer will want to hear from the arresting officer to determine whether or not the driver actually refused testing.Contest the Refusal Accusation
While a driver is not required to participate in his or her DMV administrative per se hearing, having the driver testify to contest the refusal accusation is often recommended. There may be a valid defense to the refusal allegation. If the driver was just in an accident, he or she may have been physically unable to consent to chemical testing. In addition, the officer is required by law to offer the defendant a choice of the breath and blood test and to explain that a test refusal will result in the driver losing his or her license for a year. If the full admonition was not provided to the driver or if the driver was not given a meaningful opportunity to complete chemical testing, the hearing officer may ultimately rule in favor of the driver and may set aside the suspension.
Even if the DMV rules in the driver’s favor, he or she may still face a license suspension if convicted of DUI in court. The DMV administrative suspension operates independently of any court suspension. A person who is convicted of DUI in court without the refusal enhancement would face a minimum six month suspension and would be eligible for a restricted license after a 30 day hard suspension.
If you have been accused of DUI refusal and are concerned about the implications this could have on your license, it is critical that you meet with a Los Angeles DUI Attorney right away. Lawyer Michael Kraut is a former Deputy District Attorney with over 14 years of prosecutorial experience who understands how to effectively defend his clients accused of DUI refusal in DMV administrative hearings.
For more information about Los Angeles DUI Refusal and the administrative hearing, and to schedule your free consultation, contact Michael Kraut at the Kraut Law Group located at 6255 Sunset Boulevard, Suite 1480, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.