Many of our clients are curious as to how an experienced Los Angeles DUI Lawyer can defend a refusal case. A refusal case is one in which the drive has refused to take a blood alcohol test and therefore, the prosecutors have no evidence as to the percentage of their blood alcohol.
To understand how a refusal case is defended, it is first important to understand what a DUI refusal is. When a person has been stopped on suspicion of driving under the influence, officers are required to have probable cause to ask the drive to submit to a blood alcohol test. This test is referred to the preliminary blood alcohol test and is not mandatory. A driver may elect to decline a blood or breath test at this point, with no penalty to him or her.
Officers must also have probable cause to ask the driver to submit to this preliminary test. This means that an officer cannot simply ask you to take a test because he has a “feeling” that you might have been drinking. There has to be valid observations and evidence that will support the officer’s assumption. The most common way officer’s obtain this probable cause is by simply asking the driver of he or she has had anything to drink. Wanting to be cooperative, most driver’s will answer in the affirmative and specify the amount of alcohol they have consumed and when. This gives the officer’s probable cause.
The driver has a right to plead the fifth amendment and politely decline to answer the question. If the driver declines, the officer must base his probable cause on observations he has made. This may be slurred speech, watery eyes, the strong smell of alcohol, uncooperative behavior or other signs. If the officer can establish that there is a strong probability the driver has been drinking, he will have probable cause to proceed.
Although the preliminary test at the scene is not required, a secondary test administered at the station is mandatory. When a person is issued a driver’s license, they are giving their implied consent to submit to a alcohol test when they are asked to do so by authority. If a person has reached the point to where they are taken to the station, officers have strong evidence that favors their assumption of driving while under the influence of alcohol or drugs.
Because implied consent is given as a condition to having the privilege to drive in California, when that consent is not honored, the consequences can be a little more strict. Therefore, if a person has been stopped for a DUI, and they have refused the BAC test, it is in their best interest to have a powerful defense that will likely help dismiss the case in its entirety, or in the very least, the additional enhancement of a refusal.