The DUI laws in California are particularly harsh on drivers that refuse to provide a Blood Alcohol Content (BAC) test at the site of pull over or at the police station. The drivers who refuse a test faced ‘enhanced’ penalties in addition to the consequences of the DUI misdemeanor.
If you have refused a breath or blood test in the DUI suspicion, your case is more complicated than the average DUI case. In the refusal cases, it is better to consult an experienced Defense attorney that understands the laws and systems and can help you to reduce the sentences to a minimum. It is also important to note that a strong defense case can result in dismissal of ‘refusal’ charges and you may only be penalized for DUI misdemeanor if any.
Blood Alcohol Content (BAC)
BAC determines the level of intoxication in the body, and it is used to determine whether a person can be charged with DUI or not. The state of California has set the limit of acceptable BAC level for adult drivers to 0.08 and 0.04 for commercial drivers. For the drivers under the age of 21, the 0.01 or any amount of alcohol in the blood is considered illegal.
So, any driver who is pulled over for the suspicion of intoxicated driving is asked to undergo breath and blood tests to determine the level of alcohol content in blood.
The Preliminary Alcohol Screening (PAS) occurs at the site of pull-over. When the police officers pull you over in the suspicion of DUI, they ask you to provide breathalyzer test. The PAS or breathalyzer test is voluntary, and if anyone who is asked for breathalyzer test has refused it, there cannot be enhancement charges against that person.
For the drivers who are under 21 years of age, the breathalyzer test is mandatory, and it is also required for the drivers who are on probation for a previous DUI charge.
The refusal to breathalyzer test may result in immediate arrest. But, the officer can already arrest you for the suspicion of the drunk driving. So, refusal does not play a major role in the arrest.
The second type of testing is the chemical testing which is conducted at the hospital or a police station. According to law, the drivers who refuse the breathalyzer test must provide the chemical test. The chemical testing is done under ‘implied consent’ by California Vehicle Code section 2361 which means that any driver by driving the car gives the consent for chemical testing.
If you have not approved breathalyzer, but you provided the blood sample for chemical testing, you cannot be charged with ‘refusal enhancement.’ However, if you do not provide both PAS and chemical test, you will have to face additional enhancement with DUI charges.
If you or your family member or friend is facing DUI refusal enhancement in California, you should be aware of ‘implied refusal.’ The charges of implied refusal are levied when
- The person fails to blow hard enough in the breathalyzer resulting in error
- The person is unconscious to provide consent for the breathalyzer
Sometimes, the error in the breathalyzer or faulty device may also result in ‘implied refusal’ because the device did not provide accurate results and the officer puts the blame on you.
Enhancement Refusal Penalties
The penalty for enhancement refusal is increased jail time and suspension of driving license in addition to DUI sentence.
- The first-time enhancement refusal results in 48 hours’ jail time and driving license suspension for 1 years
- The second-time offense will lead to 96 hours’ jail time and 2 year driving license suspension.
- The third offense of enhancement refusal results in 10 days’ jail time and suspension of driving license for 3 years.
Also, unlike normal DUI cases, the refusal cases do not qualify for any restricted license. It means that the driver cannot apply for a restricted ‘to and from work’ driving license. So, it means an absolute suspension of the license.
Available Defense in DUI Refusal Cases
If you are charged with ‘enhancement refusal,’ contact us to provide you with the best legal advice. Our team of DUI defense lawyers consists of previous prosecutors and police officers, and we know what exactly can go wrong and how to fix it. After exploring the available defenses, we focus on the strongest ones to prepare a strong case for your DMV and Court hearings.
If it is established in court that the police officer pulled you over without enough legal reasons, then the enhanced punishment along with DUI charges is dropped.
If it is established in court that the officer failed to inform you about the consequences of refusal, then the charges of enhanced punishment are dismissed.