Monder Law Group - News
CAN I JUST SAY “NO”?
Under California’s implied consent law, you are required to submit to a DUI breath test or a DUI blood test if you get lawfully arrested for driving under the influence. Refusing to do so typically results in increased penalties (in addition to standard California DUI penalties). This is because such a refusal is called a willful refusal and legally defined as being both intentional and unreasonable.
Here’s the law behind this issue:
California Vehicle Code Section 23577 reads as follows:
(a) If any person is convicted of a violation of Section 23152 or 23153, and at the time of the arrest leading to that conviction that person willfully refused a peace officer’s request to submit to, or willfully failed to complete, the chemical test or tests pursuant to Section 23612, the court shall impose the following penalties:
- If the person is convicted of a first violation of Section 23152, notwithstanding any other provision of subdivision (a) of Section 23538, the terms and conditions of probation shall include the conditions in paragraph (1) of subdivision (a) of Section 23538.
- If the person is convicted of a first violation of Section 23153, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted and no part of which may be stayed, unless the person is sentenced to, and incarcerated in, the state prison and the execution of that sentence is not stayed.
- If the person is convicted of a second violation of Section 23152, punishable under Section 23540, or a second violation of Section 23153, punishable under Section 23560, the punishment shall be enhanced by an imprisonment of 96 hours in the county jail, whether or not probation is granted and no part of which may be stayed, unless the person is sentenced to, and incarcerated in, the state prison and execution of that sentence is not stayed.
- If the person is convicted of a third violation of Section 23152, punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted and no part of which may be stayed.
- If the person is convicted of a fourth or subsequent violation of Section 23152, punishable under Section 23550 or 23550.5, the punishment shall be enhanced by imprisonment of 18 days in the county jail, whether or not probation is granted and no part of which may be stayed.
(b) The willful refusal or failure to complete the chemical test required pursuant to Section 23612 shall be pled and proven.”
Simply put: If you refuse a chemical test as part of a first DUI investigation then your driver’s license will be suspended for a year. For most people this is way worse than the added jail time. If it is a second DUI or greater, within the last 10 years, then the suspension for a refusal will be two or more years. EEKS!
How Does This Play Out in Trial?
Firstly, I hope you hire a skilled San Diego criminal defense attorney to know how to argue this matter for you. Secondly, your skilled criminal defense attorney will know to that before the prosecution can use this refusal against you, they must prove the following:
- The defendant drove a motor vehicle;
- That the defendant was offered a choice of blood or breath test for the purpose of determining the alcoholic content of his blood;
- That the defendant was made aware of the nature of such tests and their purpose; and
- That after being offered such a choice of tests, and being made aware of their nature and purpose of such tests, the defendant willfully refused to take any of said tests.
Each one of these four points are starting defenses for a skilled criminal defense attorney, and if they can prove just one—the refusal cannot be used to show such conduct shows a consciousness of guilt that the prosecution is attempting to prove.
Courtesy of Toon Pool
Driving Under the Influence (DUI) charges carry with them the possibility of both jail time and the loss of driving privileges. As with any criminal case, a DUI defendant makes a major mistake if he attempts to make their way through the system without an aggressive criminal defense lawyer to stand up for their rights. Contact Monder Law today for a free San Diego DUI attorney initial consultation regarding your case. Vik Monder represents clients in throughout San Diego.
