Los Angeles DUI Lawyer Blog

If a person is charged with a DUI, and they refused to take a breath or blood test at the time of the arrest, they may face additional consequences if convicted. When a driver is issued a California license, they give implied consent to submit for a blood alcohol test if asked to do so by officers. When a person refuses to do so, they are violating this previously given consent, and the penalties are taken seriously by the DMV and the government.

Many of our clients do not explicitly refuse to take a blood or breath test, but are unable to do so for various reasons. For example, many people who are overwhelmed and stressed out find it difficult to calmly breathe into a breathalyzer to get an accurate result. Some have asthma and are unable to properly breathe into the machine. Those that are unable to take the breath test and provide usable results, must take the blood test as an alternative. But many times, the officials administering the blood test are unable to find a vein or collect a sample large enough. The driver may also have a fear of needles and cannot submit to the blood these. As a result, the person is unable to take the blood test or the breath test, but have cooperated and provided legitimate attempts to do so.

For example, say Sally is stopped for a DUI and is asked to take a BAC test. She has asthma and does not have her inhaler with her. She, nevertheless, tries to breathe into the machine in order to provide a sample but officers tell her that none of the attempts were valid. She is then asked to take a blood test since the breath test was not valid. They try to take her blood but cannot find a vein and after several attempts, fail at gathering a sample. Sally followed directions and tried to aid the officers in gathering a sample to the best of her ability, but because of uncontrollable factors she was unable to do so.

Unfortunately, the law does not make an exception for such a situation. It will still be charged as a refusal, and will lead additional consequences if convicted. When there is no reading of blood alcohol, whether it is a blood or breath reading, the law views it as a refusal. The reason as to why there was a refusal is irrelevant.

However, an experienced Los Angeles DUI Lawyer is able to use any cooperation on behalf of the client as a good faith support. A knowledgeable attorney will play up a strong argument that the driver attempted with good faith to take the test but was unable to do so due to factors out of their control. With the right powerful defense a DMV hearing officer, or a Criminal Judge may be sympathetic and appreciate the cooperation, reducing the additional penalties on account of the refusal.

When a person is stopped and asked to take a Blood Alcohol Test, a refusal to do so, may lead to serious consequences. When a person is granted the privileges of driving in California, along with the obligations and duties is implied consent to cooperate if a driver is questioned by officers regarding a possible DUI. By holding a valid driver's license, you are agreeing that if you are stopped by officers, you will comply with requests to take a breathalyzer or blood test in order to test your blood alcohol content (BAC). Refusing to take the BAC test will have serious consequences because you are going against your previously given consent.

During a DUI arrest, officers will administer BAC tests at two separate occasions. You will be given a field sobriety test at the scene of the stop when the officer initially questions the driver. The initial sobriety test is not required by law and will not have severe consequences for refusal. However, the breath or blood test you are asked to take after being taken into custody at the police station is required by law. You do have the right to refuse, but will face additional consequences if convicted of a DUI.

If you refuse to take the breath or blood test that is required, officers must admonish you of the consequences. They must read it verbatim from a form and have you sign it acknowledging that you understand the additional penalties you may face for having refused. If this form is not read and signed, there is a strong argument for any additional penalties incurred as a result of the refusal to be dismissed.

If a person refuses the BAC test after having been admonished of the possible additional consequences and they are convicted of a DUI, they will most likely be sentenced to mandatory jail time. Those that have opted to refuse the test may be looking at 48 hours of jail time and a year long suspension if they are a first time offender. Second time offenses may be sentenced for 96 hours of mandatory jail time and a 2 year license suspension. Third time offenders will be penalized with 10 days jail time and 3 years of license suspension.

These penalties are in addition to the general DUI sentence. The refusal is an enhancement that adds additional jail time, fines and length of license suspension to the general DUI penalties. For example, a woman is charged and convicted of a Southern California DUI for the first time. In addition to the DUI, the woman refused to take the breath or blood test at the station giving her the added enhancement of a refusal. The Judge sentences her to a day in jail and a fine of $1000 and probation. As a first time offender of a DUI she may be penalized a fine between $390 to $100 and very minimal jail time, if any. However, because she refused the BAC test, her jail time will be a 3 days (the one day and additional 48 hours) as well as the fine and probation. The DMV hearing will determine the suspension or revocation of driving privileges. What the DMV hearing officer decides will have an added suspension of one year if there was a refusal.

When you are arrested for a DUI, the consequences of a refusal are not something you think about. However, they do come up as an issue later on during the Criminal proceedings and the DMV hearing. An experienced Los Angeles DUI lawyer can prepare a powerful defense in your favor to help mitigate or dismiss the additional penalties.

The proceedings at a Los Angeles DMV hearing are very different from those in Criminal Court. The DMV hearing may take in person, or at the request of a Los Angeles Criminal Defense lawyer, over the telephone. Telephonic hearings are often requested by the attorney so that they can help coach you with the testimony. The DMV hearing officer will call you the law office and the attorney and client will be present and listening over speaker phone. All dialogue is on the record and will be conducted with the professionalism and legal guidelines as any proceeding, but is just a lot more convenient for all parties involved.

The officer will call at a scheduled time and will confirm the name of the attorney and the client. The client is identified by providing full name, birth date and address. The attorney will be identified by providing a name, and address. The officer will introduce the different exhibits as evidence, one of which will be the arrest report including the officer's statements. The issues will be stated and the officer will ask which the attorney stipulates to, and which he or she is contesting.

Once all issues have been stated and it has been entered on the record what is being contested the DMV hearing officer will swear in the client and any other witnesses that are going to testify on the record. The attorney will then ask the client questions, followed by any questions the officer may have.

Some of the questions the attorney will ask are general to most DMV hearings, however some will be specifically tailored to the specific case before the hearing officer. The attorney, through questioning will try to establish that the client was not intoxicated while driving. Oftentimes this is done by discrediting the officer whose statements serve as the sole evidence, or by establish additional witnesses who can account for the driver's actions.

The experienced Los Angeles DUI specialist will ask general questions asking for the client's story of the night they were arrested, asking questions to elaborate on parts that he or she feels are worth putting on the record. The hearing officer will likely counter asking what the client remembers from the night and trying to protect the credibility of the arresting officer's statements and weakening the credibility of the driver. Because the driver is presumed to be intoxicated, their account of the events is taken with little regard. The officer and most often the court will assume that the driver was under the influence of alcohol and/or drugs and does not have an accurate memory of the night.
At the conclusion of the hearing the officer will make a decision regarding the status of the driver's license. Sometimes if there is room for argument and the attorney has presented powerful testimony, the hearing officer will not be able to make a decision based on the facts presented and will have to hear testimony from the arresting officer regarding the facts from the night of the arrest. In this case, a second DMV hearing will be scheduled.

The DMV hearing is an important part of the DUI process and one that holds the final decision regarding your driving privileges. A knowledgeable DUI attorney provides the guidance you need to make sure your credibility is strengthened and your side of the case is heard on the record before any decision is entered. Without an attorney, it is difficult to be sure of the right questions to ask and what to say in response to the DMV hearing officer. For the best possible results and to assure that your driving privileges are only suspended for a minimal amount of time, and a restricted license is granted, seek the help of an expert that has been conducting DMV hearings for over 30 years!

During a DMV Hearing the officer will ask questions and review the arrest report to determine several issues and make a decision regarding the restriction or suspension of your driver's license based on their findings. All questions asked and evidence gathered will be directed towards determining answers and argument centered around the issues that must be determined.

At the hearing the DMV officer must first determine whether the arresting officer had valid probable cause to stop the driver. The officer may not stop any driver without a valid reason to do so. Majority of times the driver is stopped for a violation of the California Vehicle Code. This could be running a red light, speeding, an illegal u-turn, or similar offenses. If a person violates the vehicle code, the officer has a duty to stop the driver and cite them for the violation. If during the stop the officer believes the person may be intoxicated, they have the right to conduct a sobriety test to determine if they could possibly be guilty of a DUI.

An officer also has probable cause when they check up on a person who had gotten into an accident or is pulled over at the side of the road. When a person is pulled over or has just gotten into an accident, the officer must conduct a welfare check to determine whether the person is ok or if they need assistance. At the time of the check the officer may determine the person is under the influence of drugs and/or alcohol and give the person a sobriety test.

The DMV officer must also determine if there was reasonable cause for the arresting officer to arrest the driver. They must look into observations made by the officer regarding intoxication to determine if the arrest was proper and with reason. If there was no reason to arrest the driver, there may be no case for DUI.

The hearing officer will also asses the facts of the case to determine whether a sobriety test was taken and if so which one. The driver has a right to refuse the preliminary alcohol screening test administered at the site of the arrest, but refusing the test at the station may lead to more severe consequences if the person if found to be driving under the influence. The driver also has a choice between the blood test, and the breath test, but by implied consent one must be taken at the station. Implied consent is consent given when a person is issued their driver's license. It implies that the person agrees to submit to an alcohol screening test when asked to do so by an officer.

If all other issues have been demonstrated, the final point the officer must determine is if the Blood Alcohol Content reading is a .08 or over. This will be completed by confirming the BAC reading from the blood or breath test and determining that there was no error in the use of the machine or its maintenance.

The job of the Los Angeles Criminal Defense lawyer is to prove to the DMV hearing officer that the elements required to be found guilty of a DUI are not met. This is completed through testimony and casting doubt upon the officer's report and observations from the night of the arrest. If the different issues are not proven sufficiently, the driver may not be found guilty of a DUI, and their license will not be suspended or revoked.

When a person has been charged and arrested for a Southern California Driving under the Influence charge they must appear before a criminal court Judge as well as a DMV hearing officer. The criminal court will determine if they are guilty of a DUI and will dismiss or sentence accordingly. The DMV hearing officer will hear the facts of the case and if found guilty will take actions against the person's driver's license.

Each person has the right to a criminal defense lawyer to represent them in both the criminal court proceedings and the DMV hearing. Hiring an attorney to represent the driver during the DMV hearing not only ensures that the person is properly prepared during the testimony, but also that their rights are protected. A powerful argument made during the DMV hearing can help prevent the California driver's license suspension for an extensive amount of time, and in certain situations may allow them to retain the use of their license on a restricted basis.

During a DMV hearing the officer will present the arresting officer's report and will give the person charged an opportunity to present their side of the case on the record. The driver has the burden of proving that they were not intoxicated while driving. They must prove their case through strategic testimony.

The careful preparation and practice testimony prepared by an experienced Los Angeles Criminal Defense lawyer will assure that the DMV hearing officer is aware of all issues pertaining to the case and that all facts are put on the record. These facts are brought out through testimony and the criminal defense attorney will help their client go through questions and issues prior to the hearing, as well as be present during the hearing to guide the questioning.

Oftentimes, the hearing officer must learn all sides of the case, and if a person does not have an attorney to represent them during the hearing, they will not know what to say and may make statements that could damage their case.

Recently we had a client who had a very difficult case. She believed that she had been drugged, was very scared and terrified about the whole ordeal. A DMV hearing was the last thing she needed to stress her out and remind her of the night she was traumatized by. With the guidance and help of our knowledgeable attorney, Ronald Hoffman, she was able to get through the DMV hearing. The DMV officer is trained to remain unsympathetic to emotional stories regardless of how difficult the situation is for the driver. Despite the sadness and tears our client had while answering the questions, she was able to persevere through the testimony with the attorney asking her questions and guiding her responses while sitting right there next to her.

When a person is already stressed out by appearing before a criminal court Judge, the added hassle of a DMV hearing may be more than they are able to deal with. There is a great benefit in having an experienced Los Angeles DUI attorney to help guide you through the testimony and ask questions that would normally be left up to the DMV hearing officer. Additionally, the lawyer can spend time with you beforehand preparing you for the questions that will be asked and the best way to phrase responses so that the DMV officer understand that you are not just another case number, but a person with a name and a side of the story that would not normally be heard.

The burden of proof in a criminal case refers to whether the government (Department of Motor Vehicles or the Prosecutor) or the driver has to prove the person being charged meets the standard required to be found guilty of the offense.

During a DUI case in front of the Criminal Judge, the Prosecution has the burden to prove that the driver is guilty of driving while under the influence of alcohol and/or drugs beyond a reasonable doubt. What this means is that the government attorney must demonstrate to the court that there is enough evidence that demonstrates the person was guilty of a DUI beyond the doubt of a reasonable person. If there is any kind of doubt upon any part of the evidence, or the evidence as a whole, the burden has not been met. The person being charged has no obligation to prove that they were not intoxicated and driving. They have the right to defend themselves against accusations made or presented by the government, but do not have the burden of disproving intoxication while driving. If the government cannot present enough evidence as to alleviate any reasonable doubt, then they have not met their burden and the driver is not guilty of a DUI.

Assuming as an example, a person is being charged with a DUI in front of a criminal Judge. Prosecution presents a Blood Alcohol Reading and the officer's statements as evidence. However, the officer has been cited several times previously for fabricating reports and there is a conflict between his story and the driver's. There was a second car on scene that witnessed the whole event and corroborates the driver's story causing further doubt on the officer's report. Additionally, the blood alcohol machine records show that the machine has not been calibrated or sent for proper maintenance in a few years resulting in a margin of error on readings. Due to the discrepancies in the officer's report and the possible erroneous reading on the breathalyzer the prosecutor has not proven the case beyond a reasonable doubt. The accused driver has no obligation to show through evidence that he was not intoxicated, the case will be dismissed.

During a DMV hearing the burden is on the driver to demonstrate that they were not intoxicated while operating a motor vehicle. The DMV hearing officer does not have the obligation to show that the driver was intoxicated like the government does in a criminal case before the Judge. The officer must listen to the testimony of the driver and that will be entered as evidence against the claim of driving while intoxicated.

For example, during a Southern California DMV hearing, and officer enters the arrest report prepared by the arresting policeman that the driver showed signs of being under the influence of alcohol and was weaving in and out of lanes. Additionally, the driver made statements admitting that she had had several drinks of hard alcohol and decided to drive. Although the driver will have the chance to testify with the help of her attorney before the DMV hearing officer, she will likely not be able to disprove the assumption that she was drinking and driving. In this cases, the burden that she was not intoxicated will not be met, and the DMV will suspend her license according to their laws.

The burden of proof will determine how the case should be argued, defended and presented. The proper evidence and testimony must be prepared according to whether the case is being heard by a criminal Judge or a DMV hearing officer. An experienced Los Angeles DUI lawyer has handled these cases thousands of times and knows what the best argument will be based on the circumstances and who the case is being presented to.