Los Angeles DUI Lawyer Blog

When a person is stopped on suspicion for driving under the influence, they will be asked to take a blood alcohol test. When a person is issued a driver's license in California, they give their implied consent to submit to a blood alcohol test when asked to do so by officers. Officers will ask a person who is stopped to take a BAC test at the scene of the stop, but the driver is not required by law to do so at that time. This is referred to a preliminary blood alcohol screening test.

The driver will be asked to take a second BAC test, either blood or breath, at the station. This is a required test, and if the person refuses, there will be more severe consequences if the person is convicted. When the person refuses to take any BAC test, it is referred to as a refusal and dealt more severely with Courts.

In many situations, however, a person genuinely attempts to take the BAC test and is unable to do so, regardless, the Court will treat the case as a refusal. It is up to the person being charged and their Los Angeles DUI Defense Lawyer to prepare a strong argument that demonstrates the person's full faith effort to cooperate with officer's requests.

The arresting officer will prepare a report that states the person did not sufficiently provide a sample. There are many reasons a person fails to do so. With a breath test, they may not be able to blow properly, especially if they have asthma or are nervous. A person may not be able to take a blood test if they are scared of needles, or the person gathering the sample is unable to get a measurable sample of blood.

The officer will create a scenario that indicates the driver was uncooperative, that the person was not cooperative and purposely would not provide a sufficient sample. The criminal defense attorney will have to present the facts to the court that proves that it was not the case.

The Los Angeles County DUI specialist will demonstrate that the person provided several samples when asked, regardless of the fact that they were insufficient. The attorney will also show that the person is an upstanding citizen of the community who has always followed the law and has been cooperative with legal obligations. In essence, they must prepare a powerful defense that the person did their best to cooperate with the BAC test, and were unable to do so.

If a person is convicted of a DUI refusal, the consequences are significantly more severe than a DUI without a refusal. The help of a knowledgeable Los Angeles DUI lawyer will assure that the Judge is aware of your full faith effort to comply with officers and that the charge should not have the added enhancement of a refusal. Be sure that you have an experienced attorney to fight for your rights, and assure that you see the most favorable outcome for your case.

Many of our clients believe that because they have refused to take a Blood Alcohol Test during the time of their DUI arrest, there will not be enough evidence to find them guilty of a DUI. This, however, is not true. A person may be found guilty of a DUI based on the arresting officer's observations and any statements made by the driver.

When a person has been charged with a criminal offense, they have the option to accept a plea bargain made by the prosecutor. A plea bargain is an offer for the person being tried to plead guilty for a charge and in exchange receive a lower penalty. If a plea bargain is taken, the person charged will plead guilty to a charge before the criminal Judge and will be given a lowered sentence. If the charged person does not accept the plea bargain, further negotiations may be made. If there is no agreement, the case proceeds to trial.

Lets say David has been charged with a DUI where he has refused to take any BAC test. Officer's observed him as slurring, smelling of alcohol and weaving in and out of lanes. David believe that because he refused to take the BAC they will have no proof as to his intoxication and the case will be dismissed. Prosecutors offer David a plea bargain. They explain to him that if he pleads to a misdemeanor DUI, they will drop any enhanced penalties because of the refusal, and give him the lower end of the legislative penalty for Driving while intoxicated in California. If David takes the offer, he will go before a Criminal Judge and plead guilty to a DUI, be sentenced and his case is closed. However, if David decided he absolutely believes he is innocent, or that there is not enough evidence to find him guilty, he will proceed to trial.

The mistake many people make in a DUI case is that they believe there is not enough evidence to find them guilty of a DUI when they have refused to take a BAC test. Consequently, they do not take a plea bargain and opt to go to trial instead so that the court can make a finding. When there is a trial for a DUI in which the driver has refused to take a BAC test, the jury receives special instructions when determining a verdict. You can use the refusal as an admission of guilt if the person refused to submit for a BAC test after they were given an admonishment of rights. This assumption may only be used if it was given AFTER the admonishment of rights were read and if they were read properly so that the person understood which rights they were giving up.

Due to the fact that there is an assumption of guilt associated with a refusal in trial, it is in the best interest of a person who is charged with a DUI to retain an experienced San Diego DUI attorney. A knowledgeable DUI specialist will be able to provide a thorough analysis of the facts and determine which course of action and possible defenses will be best for the outcome of the case.

During a Los Angeles DMV hearing, the burden is on the driver to prove that they were not intoxicated while driving at the time of the arrest. If an attorney has been hired on the case, then it is the job of the attorney to present a case that demonstrates that there was little or no blood alcohol content. This is completed through testimony, casting doubt on the credibility of the arresting officer's report and any additional witnesses or documents that are necessary.

During the routine DMV hearing the DMV officer will determine whether there was reasonable suspcicion of the arresting officer to stop the driver, whether a blood alcohol content test was taken, and whether the results of that test were over .08. For most DMV hearings, the issues addressed will be these. However, when no BAC test was taken, the DMV hearing will follow an alternate path.

When there is a refusal, the officer will address the issues pertaining to the refusal. They will ask what the reasons were for refusing to take any of the tests offered and whether the person was read an admonishment of rights regarding the refusal.

Anytime a person has refused to take a BAC test, for any reason, the officer must read them an admonishment of rights verbatim. It informs the arrested person that refusing to cooperate and take a test may result in added penalties if they are convicted. If an admonishment is not read properly or at all to the arrested driver, the additional penalties may not be included with the final sentence.

The DMV hearing officer must determine whether there was a refusal, and if there was a refusal, if an admonishment was properly given. This will determine the proper standards in which they can suspend or restrict a license, and the appropriate length if found guilty. When there has not been a refusal, the DMV officer will not go into the issue of admonishment of rights. It is irrelevant.

For example, Daisy has been arrested for a DUI. She was stopped for not stopping before taking a right turn at a red light. Officers believed she may be intoxicated and asked to take a blood alcohol test. She agreed and allowed the officers to take her blood. During her DMV hearing, the officer questioned Daisy about the right turn at a red light. The officer assessed whether this was what had happened using Daisy's testimony and the arresting officer's report. After having made a determination, she asked about the BAC test, which Daisy agreed to having taken. The officer ruled out any refusal issues, and then determined the outcome of the blood test.

In comparison, lets say that Daisy had refused to take the BAC test. The DMV hearing officer would still address the issue of whether Daisy had in fact failed to stop at a red light before making a right turn, and whether this constituted enough probable cause for the officer to stop her. However, the DMV officer will then ask why Daisy had refused to take the BAC test, and whether she had properly been read an admonishment of rights. Even if Daisy had attempted to take both tests, but was unable to do so, it will be considered a refusal.

When there is a refusal there are different issues to be addressed at a DMV hearing. There are also additional consequences to be considered. Many people believe that the DMV hearing is not as significant as the criminal court proceedings, but that is in fact not true. There should be a Los Angeles Criminal Defense lawyer representing a person's rights and interests at both types of hearings in order to keep penalties at a minimum and increase any chances of the case being dismissed.

Contrary to what some people may think, a DUI case against a person is not dismissed based simply on the fact that there is no blood alcohol content (BAC) reading. Many people think that if they refuse to take a BAC test, then there is no evidence or proof against them that they were intoxicated while driving. Not only is this not the case, but it may lead to additional penalties if the person is found guilty.

When granted driving privileges in California, a person agrees to comply with authorities if stopped or questioned for a DUI. This implied consent is a silent acceptance when a person is issued a California driver's license. When a person refuses to take a BAC test it is a violation of the implied consent and is taken into serious consideration by legislation and the Courts.

This BAC test refusal does not lead to a dismissal of a case due to lack of evidence. There are other types of evidence that will be introduced in court by Prosecution that could lead to a conviction. The officer's report is considered evidence. It contains the arresting officer's observations and account of the night of the arrest. This is referred to as discovery. Observations made by the officer are held with high credibility and will be taken into consideration by the Judge as strong evidence of the driver's intoxication.

Officer's will note things such as slurred speech, the smell of alcohol, blurred vision, failure to properly comprehend instructions and statements made by the driver. Also included in the police report will be the reason the person was stopped and questioned for a DUI. An officer needs reasonable cause to pull someone over. This is usually a traffic violation; speeding, illegal u-turn, weaving between lanes, etc. It can also be a check in good faith if someone is pulled over at the side of the road. The circumstances for stopping or questioning a driver will be included in the report, and may be strong evidence of intoxication.

This may seem circumstantial and difficult to use in proving a DUI case, but in many cases can be enough. For example, Jill is weaving in and out of lanes, nearly missing cars and is pulled over by an officer. Upon arriving at Jill's window, the officer smells a strong odor of alcohol. He asks Jill if she has been drinking, and Jill responds with slurred speech that she only had a few Gin and Tonics at dinner. Jill is arrested and taken into custody where she refuses to take any BAC test and is properly read an admonishment of rights. Because Jill refuses to take a BAC test, there is no blood alcohol reading with which Prosecutors can prove her intoxication. However, the observations made by the officer and the statements made by Jill are strong and will likely lead to a conviction.

In comparison, Jack is pulled over for running a red light. Officers approach Jack and ask him if he has been drinking. Jack replies that he has not been drinking, apologizes and said that he had not slept in a few days and was in a hurry to get home. Officers do not smell any alcohol but Jack seems to be fidgety and his eyes look tired, and his vision is blurred. Officers ask Jack to take a field sobriety test which he refuses and is arrested. At the station the officers ask Jack to take a BAC test, which again he refuses. He is properly read his admonishment of rights for refusing. Although officer's stopped Jack for running a red light, that may be the only thing he will be found guilty of. The officer's observations may point to an intoxicated driver, but it isn't strong enough to provide enough evidence for a DUI.

Do not make the mistake of thinking that because there is no BAC reading, the DUI will be dismissed. Consult a knowledgeable Los Angeles attorney to review the police report and discuss the strengths and weaknesses of your case.

During a routine DUI stop in Southern California, the officers will ask the driver to submit themselves for a field sobriety test. This is usually a breathalyzer test administered at the site of the stop and gives officers a preliminary idea regarding the person's blood alcohol content (BAC). This BAC test is not mandatory, and if completed, is completed as a courtesy and in an effort to cooperate with officers.

If a driver is taken into a police station on suspicion of the DUI, they will be offered a second BAC test, either blood or breath. The second test administered at the station is mandatory and refusal to do so can result in added penalties and consequences. When a driver is issued a California driver's license they agree to comply and cooperate with officers during any DUI stop. This includes submitting to a blood or breath test so that officers may collect an accurate reading for the person's blood alcohol content. This implied consent is an agreement between anyone with a valid driver's license and the State of California and if violated warrants significant consideration.

When a driver refuses to take a BAC test at the station, it is considered an enhancement to the DUI charge. An enhancement results in penalties in addition to those of a DUI without refusal. This includes a longer suspension of driving privileges, additional fines and mandatory jail time.

Due to the fact that there are additional penalties officers are required to read an admonishment of rights to any person who refuses to take a BAC test. An admonishment of rights advises the driver that there will be added penalties if they are found guilty of a DUI and advises them that they are required by law to take a test, and failing to do so is a violation of implied consent.

The admonishment of rights has to be read word for word and at a time when the arrested person fully understands what potential consequences may be for refusing to take a BAC test. Any failure on the part of authorities to inform a driver of their rights and the consequences of relinquishing these rights will be taken seriously by the court in the interest of protecting rights and the notion of justice.

If it is proven in court that an officer failed to properly read a driver an admonishment of their rights in refusing to take a BAC test, the refusal will not result in added penalties. For example, Dan is arrested on suspicion of a DUI and taken to a station. At the station he refuses to take any kind of BAC test, adamant that he has not drank anything and the officer's are wasting his time. Officers get busy with other inmates and in the meantime Dan falls asleep. The officers, meanwhile, read Dan an admonishment of his rights in refusing to take the BAC test and since he is asleep, skim most of the words and paraphrase. If Dan is found guilty of a DUI there will be no additional penalties due to a refusal because he was not properly read an admonishment of his rights.

Anytime there is a refusal in a DUI case, there is a potential for mandatory jail time. An experienced Los Angeles DUI lawyer has handled many refusals and successfully reduced any additional penalties as well as mandatory jail time. If you are facing a refusal, it is important to speak to a knowledgeable attorney that can help protect your rights and prepare a powerful defense.

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.