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Understanding the Implied Consent Laws when Stopped for a DUI in San Diego
If you do not submit to a alcohol test after being arrested in San Diego for driving under the influence of alcohol, then you risk losing your driver license. Any experienced DUI defense attorney will need to show a good legal explanation for the refusal.
A good legal explanation would attempt to invalidate the implied consent laws. A successful attack would require a showing that California implied consent laws were not complied with in its entirety. The implied consent law states that a person driving a motor vehicle is deemed to have given his or her consent to chemical testing of his or her BAC if lawfully arrested or an offense in violation of vehicle code section 23140, 23152, or 23153. The officer must instruct the defendant that failure to submit to a BAC test will result in a fine or suspension of driving privileges. The officer must not use manipulative tactics to attempt to obtain a blood sample such as affording the defendant an opportunity to prove his or her innocence.
The most popular case San Diego criminal defense attorneys use when there is a forced blood draw from a defendant facing drunk driving charges is Schmerber v. California, 384 U.S. 757 (1996). This case involves the taking of a blood sample when the officer requested the blood sample after an accident and the defendant was in the hospital. The Supreme Court ruled that it was a violation of the 4th Amendment prohibition against unreasonable searches and seizures. Everyone has a privilege against self-incrimination. Officers are only allowed minor intrusions into the body without a warrant and it must be limited to the conditions observed by the officer.
If you believe the officer did not have enough probable cause for a forced blood draw based on the conditions surrounding the DUI stop in San Diego, then it is critical that you immediately contact an experienced San Diego DUI defense attorney that will file motions on your behalf to suppress the blood sample from coming into evidence as a way to show consciousness of guilt. Please remember that you do not have to subject yourself to a field sobriety test when asked by an officer. There is no implied consent for that. The officer in San Diego County is required to get enough probable cause to make an arrest so that he would be justified in forcing a blood sample.
There is a punishment on the administrative side for refusing to the blood test under the implied consent laws. However, any experienced criminal DUI defense attorney in San Diego will be able to prevent any suspension on your license based on an unwarranted search of your person. You are protected by the privilege against self-incrimination!
Always demand an in-person administrative per se hearing when your driver license may be suspended. There is a lot of information that can be gained by having a hearing in person with your San Diego DUI Defense Attorney present. Remember if you plan to go with the public defenders office, then they will not be there to help you through the licensing issues you will have with the DMV.
There is a California Jury Instruction that is used frequently in these type of cases which indicates that refusing a blood test when offered is not sufficient, standing alone by itself, to establish the guilty of the defendant. The most successful attacks have been those focused on the officer’s failure to comply with the statutory procedures mandated in the implied consent statutes. Always look for potential constitutional inconsistencies in a case by examining the actual implied content statute as it relates to the facts of your case.
If you have any question about implied consent laws when stopped for a DUI in San Diego, contact Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense Attorney
