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What happens if I refuse a breath test for a DUI?

California Vehicle Section 23612 (a)(1)(A) (implied consent law) provides the following:

A person who drives a motor vehicle 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 an offense allegedly committed in violation of Section 23140, 23152, or 23153.

Penalties for Refusal

If a person fails to submit or fails to complete the required chemical test (CVC 13353.2), the following will occur:

  • the license will be suspended for one year,
  • there will be two additional days of jail time, and
  • completion of a 9 month first conviction program, as opposed to the three month program.

If they had a prior license suspension and it occurred within 10 years,

  • the license will be suspended for two years;
  • 96 hours extra jail time; and
  • generally, an18 month program

If they had two prior license suspensions within 10 years,

  • their license will be suspended for three years;
  • 10 days additional jail time; and
  • generally a 30 month program

Defense Strategies That Can Be Used for DUI Test Refusal

There are some issues that an experienced DUI attorney can attack:

  • Was there probable cause to stop the vehicle?
  • Was there reasonable belief of driving under the influence of alcohol or drugs?
  • Did the chemical test admonition comply with CVC 23612 – that is, did the officer explain the consequences for refusing to take a chemical test?
  • Did the officer explain they had a choice of which chemical test to take?
  • Was there an actual refusal, or was there an attempt to complete the test, but through no fault of their own, unable to complete the test?

This is a small sample of potential defenses that may be available when someone is accused of refusing a chemical test. Contact Kern Law, APC today, and speak with me personally about your case if you have been charged or are under investigation for a DUI.