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Legal > THE REFUSAL CASE
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Article rating : 0.00, 0 votes. Author : Kenton Koszdin
When a California DUI suspect refuses to take a chemical test,
both the DUI defendant and the prosecution are presented
with challenges and opportunities.
California has a law called the informed consent law of chemical
testing. What this means is that when you got your drivers
license, you agreed (although you probably did not realize it at the
time) that in exchange for the state giving you your drivers license,
you agreed to submit to a chemical test. This law means that the
state does not need a warrant or other court order to have you submit
to a chemical test.
If a DUI suspect is arrested and after arrest is given the opportunity
to take a chemical test such as a breath, blood, or urine test, and
refuses to take any chemical test, the DUI suspect will be charged with
an additional crime of refusing a chemical test.
The DUI suspect who refuses to take a chemical test gains some
advantages by refusing. The prosecution does not have a blood
level number to rely upon and has the more difficult job of proving
impairment as defined in California's jury instructions. However,
this is of limited value.
Many DUI defendants are charged with refusal because at the time they
were asked to take a chemical test, the DUI defendant believed that
they had the right to speak to a DUI lawyer or California DUI lawyer. While this may be the
law in some states, it is not the law in California. This
mistaken belief has lead to many refusal cases.
In many DUI cases, the defendant agrees to take the voluntary field
sobriety tests while refusing to take the mandatory chemical
test. What this means is that in many refusal cases, the
prosecutor still has evidence of impairment through the officer's
testimony about the DUI suspects performance
on the field sobriety
tests.
Another common error DUI defendants make is to assume that by
submitting to the preliminary alcohol screening (PAS) test, that they
have satisfied their obligation to give a chemical test. In some
cases, under the right facts, this can be a winning argument.
However, in most cases, the refusal will still be charged.
Prosecutors and judges can be very hostile towards a DUI defendant who
has refused a chemical test. This hostility can be expressed in
increased jail time and extended alcohol education programs.
If the DUI defendant decides to go to trial and is found innocent of
the charge of driving while intoxicated, than the defendant can't be
found guilty of refusing a chemical test.
During the trial, the California DUI attorney will given an instruction that the act of
the DUI defendant refusing to take a chemical test is evidence that the
DUI defendant was conscious of his own guilt of the charge of
DUI. In some cases and before some jurors, this can pose a
significant challenge.
Given the challenges and risks to both the prosecution and defense,
many refusal cases are settled with some charge to the defendant.
In cases where the facts on impairment have been favorable or there
have been other defects in the prosecution's case, I have been able to
obtain reductions to wet and dry reckless with a dismissal of the
refusal allegation.
It should be emphasized that persons under the age of 21 face very
severe penalties for refusing a breath test.
This article is not meant to advise anyone to refuse to submit to a
chemical test. I advise almost everyone that it is in their
interests to submit to a chemical test. This article is also not
a warranty of a result in your case. All cases are different.
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