Questions asked by anonymous people with questions about DUI’s and other criminal charges

Consequences of Refusal

Consequences of Refusal

Question: I was charged with refusing to submit to chemical tests during a Van Nuys DUI when in fact I did agree. Can I fight this charge?

Answer:  Yes, you can fight this charge, a general rule of thumb in any criminal case is it is better to have a qualified attorney review and fight the case than it is to just blindly go to court and enter a guilty plea.  DUI cases generally have the variables from one case to another, but DUI defense is not a black and white situation.  There is a lot of gray area in the subjective interpretations and science involved in DUI’s including refusal cases.  Many people would be surprised at some of the favorable results I have been able to get and can get on cases where the client thought for sure there was no hope on.

Question:   In my refusal DUI case, the officer asked me to do a breath test.  I just asked what would happen if I did not do a breath test. They told me, then said it was too late to take it and they were marking me as a refusal.  I feel like they didn’t even give me a chance.  Is this right?

Answer:  Unfortunately, this is something that I hear quite regularly, but it is not right.  Generally speaking, the officer is supposed to offer you the choice of breath or blood test after arrest.  Failure to do so can bring success in defending against such charges.  Further, the officer is required to instruct the licensee of the consequences for failing to complete an evidential chemical test (ie. breath or blood test).  Again, failiure to properly advise the licensee can bring success in defending against such charges.  I have used favorable statutes and case law in both these situations to get refusals and DUI charges dismissed in both court and DMV proceedings.

Question:  If I am convicted of a DUI and a refusal, will the consequences be worse than if I just completed the breath test?

Answer:  If you are convicted of a DUI and a refusal in court, and lose on the refusal matter at a DMV Admin Per Se hearing (or fail to request a DMV hearing and they automatically suspend your license), there are additional penalties on top of a typical DUI case.  The penalties can vary depending on certain factors such as having prior DUI’s, but even in a 1st DUI, a refusal can lead to a 1 year hard driver license suspension (meaning no driver’s license, not even a restricted license, for 1 year) as well as an increased alcohol course (9 month course), and possible additional  jail time.

Question:  What if I was totally fine, but the officer still arrested me for a DUI and then said I refused?

Answer: As far as the criminal case is concerned, a Refusal is an enhancement to a DUI charge, if for example there was no probable cause to approach your vehicle or no lawful arrest, then the DUI should get dismissed and the refusal issue never come up.  If the DUI is dismissed, so goes the refusal enhancement issue as far as the criminal matter is concerend.

Question: I have a DUI and refusal charge with a case coming up.  Is it even worth to have an attorney do a DMV hearing for me?

Answer:  YES!  I can not stress this enough.  Although there may be a rare exception in some circumstances, it is generally ALWAYS a good idea to have a DUI Lawyer timely request a DMV hearing.  Not only can it help avoid a 1 year (or more)  hard driver license suspension, it can give your attorney some additional tools to fight the criminal case as well as the DMV hearing.

REMEMBER, there is only a 10 day window from the date of arrest to request a DMV hearing.  So if you have a pending DUI case, call me as soon as possible to discuss your situation.  Free consultation.


DUI Attorney, Criminal Defense, & DMV hearings.   Philip Hache, 818-336-1394

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About Phil Hache

I am happy to speak to you about your case. Feel free to contact me at (818) 336-1384 for a free consultation to discuss your situation in more detail.

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1 Comment for this entry

  • admin
    March 13th, 2012

    Answer: In California, officers are supposed to read an admonition which basically informs someone that there is an implied consent to a chemical test and consequences if you refuse. If after the admonition you don’t agree to take a breath or blood test, even if you say no, but then change your mind after, it can be viewed as a refusal. Note it is a bit more complicated than that, but this gives you a general idea of how it works in CA.

    Based on what you are saying, it sounds like they jumped the gun and charged you with a refusal before giving you the informed chance to answer. This can be fought. Call me at 818-336-1384 to discuss further.

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