Under VC 23612, a person who drives a motor vehicle in California is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood if lawfully arrested for suspicion of DUI. The practical effect of this statute is that law enforcement doesn’t require a search warrant or your permission to subject you to a chemical test after your DUI arrest. While it is clear that a refusal can result in potential penalties more severe than those you would have faced if you submitted to the test and failed, the issues involved in a refusal can be confusing.
A Lawful Arrest
If your Orange County DUI attorney can find grounds to successfully challenge the lawfulness of your arrest, the charges regarding your refusal will likely be dismissed.
Implied Consent Admonishment
Also under VC 23612, the officer has a duty to tell you that you have a legal obligation to submit to testing and the consequences of your failure to do so. Typically, the officer will read a standardized version of the admonishment from DMV Form DS-367, which is also the officer’s sworn affidavit of the arrest, is used to provide notice of the intent to suspend your license and serves as a temporary license.
Unambiguous
One reason most police officers read the admonishment is because some courts have held that if the driver is confused by the officer’s statement, the refusal may be legally justified.
One Offer/One Refusal
The arresting officer need not ask you to submit to testing repeatedly. If you refuse once, you have violated the implied consent law and are subject to arrest.
Silence
Repeated failures to respond when asked to submit to a chemical test or when asked which test you will take may be deemed a refusal.
Serious Injury or Medical Condition
The law recognizes that to be able to give consent, you must have a certain mental state. For example, if you sustain a concussion in an automobile crash, the symptoms you exhibit can replicate those of a person under the influence of alcohol. If an officer asks you to submit to chemical testing after such an incident, and you refuse, you could be arrested. Any incapacity that is not due to alcohol or drug use may render a refusal justifiable.
