Refusal

Is it Against my Fourth Amendment Rights to Forcibly Have my Blood Drawn During a Los Angeles DUI Stop?

September 10, 2013 | Ronald N. Hoffman

When a person has been stopped for suspicion of driving under the influence of alcohol and/or drugs, they will be asked to submit to a blood alcohol test. Two tests will be administered. One is at the scene of the stop and the other will be at the station.

The test administered at the scene of the stop is voluntary and the driver should be informed of that. It is generally a breath test and is referred to as a preliminary alcohol screening test. If the driver refuses this test, there are no adverse consequences, other than that the driver will most likely be taken into custody.

The second test administered at the police station following an arrest is still voluntarily, but a refusal carries with it some serious consequences. The test may be either a breath or blood test, and if it is refusal and the driver is subsequently found guilty of a DUI, they will face an enhanced sentence.

Insufficient Blood Alcohol Test Samples in a Los Angeles DUI Case

December 16, 2011 | Ronald N. Hoffman

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.

How Does a Refusal Affect my San Diego DUI Case During Trial?

August 19, 2011 | Ronald N. Hoffman

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 BACstest. 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.

What Happens at a Los Angeles DMV Hearing When There is a Refusal?

August 17, 2011 | Ronald N. Hoffman

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.

How Can Someone Be Found Guilty of a Los Angeles DUI if There is no Blood or Breath Test?

August 3, 2011 | Ronald N. Hoffman

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.

What are the Consequences When an Admonishment of Rights has not been Read for a Refusal in a Southern California DUI Case?

August 1, 2011 | Ronald N. Hoffman

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.

Refusal to Take a BAC Test Due to Inability in a San Diego DUI Case

July 29, 2011 | Ronald N. Hoffman

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.

What are the Potential Consequences for Refusing to take a Blood Alcohol Test During a Los Angeles DUI Stop?

July 27, 2011 | Ronald N. Hoffman

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.