Implied Consent Law – What happens if you refuse to take a Test?
Under the implied consent law if a persons is arrested for either a violation of section 23152 (misdemeanor DUI); or 23153 (felony DUI); or 23140 (under 21 DUI) of the California Vehicle Code, they have consented in advance by virtue of their driving a motor vehicle in California to submit to a chemical test to determine their blood level of alcohol and/or drugs.
If a person unconditionally refuses a test, or places unjustified condition on their submission to the chemical test, they are in violation of the requirement under the implied consent law. Courts have found refusals under the following circumstances.
Where a person later changes their mind after an earlier refusal, and asks to take a test and is denied that request by the officer administering the test.
Where a person refuses to take a test unless they can speak with an attorney; there is no right to counsel before submitting to a test under the implied consent law or under constitutional standards applying to the right of counsel in criminal proceedings.
Where a demand is made by the person arrested that unless they are allowed to have their own personal physician administer the test they will not take it. However, once a person submits to a test they may request an additional test be administered by a facility or doctor of their choice at their expense.
Where multiple requests are made to take a test and the person arrested remains silent.
Where a demand is made by the person arrested to view information from other sources, such as medical or legal, before taking the test.
However the assertion of a statutory right is not a refusal. In one case a court held no refusal where a person choosing a blood test asks to see some identification from the person withdrawing their blood to determine if that person is qualified; and then is refused that request by the police officer directing the administration of the test. The officer then offers a breath test to the individual instead, which the person refused. The court held this is not a refusal because a person has the right to have their blood drawn by one of those individuals authorized to do so by section 23158 of the California Vehicle Code.
When there is a refusal to take a test the officer administering the test must give an admonition of the consequences of that refusal. Courts have held the following advisements must be given by the officer administering the test when there is a refusal, failure to do so relieves a person from any adverse consequences.
It must be explained that refusing a test will result in a driver’s license suspension or revocation for specific periods of time.1
It must also be explained that there are mandatory fines, and jail time if found guilty of a violation of 23140, 23152 or 23153 with the added violation of refusing to take a test.2
A person detained under suspicion of violating probation for driving under the influence must be advised they will lose their license for 1 to 3 years for refusing to take a test;3 the refusal will also provide the basis for the revocation of probation in the matter for which they are on probation.
The admonishment must be in such terms so as to leave little doubt of the consequences of the refusal.
A person must also be advised that the refusal can be used in court as a consciousness of guilt admission which is evidence that can be used against them at trial.4
A driver from another state is considered to be governed by the implied consent law and need not be given a special advisement.
1 Sections 23136(c)(3), 23612(a)(1)(D) of the California Vehicle Code
2 Section 23612Ia)(1)(D) of the California Vehicle Code
3 Section 23154(c)(3) of the California Vehicle Code
4 Section 23612(a)(4) of the California Vehicle Code