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Can I be charged with a DUI when I refused a breathalyzer test but agreed to a blood test, however neither was taken?

San Diego, CA |

I was pulled over in Needles, ca for not stopping at a stop sign, which I did. I was asked how many beers I drank, I replied 2 earlier that day, and was then given field sobriety test which I passed all of them. Next I was asked to blow in the breathalyzer which I refused. I told the police officer I wanted to take a blood test. He arrested me took me to the station. At the station he asked me over 15 times to take a breath test. I refused over and over and told them I will only accept a blood test since its the most accurate. They were unable to get anyone there to take my blood so I spent the night in jail and was released in the morning without them ever getting a sample of my blood or breath. However my license was suspended. Do I "NEED" representation or can I beat this myself?

My license was suspended for refusing the breath test that night. Also, should I hire a lawyer in my area, or close to where the courthouse for my case is, which is about 2 hours away?

Attorney Answers 10


  1. Best answer

    You need to hire an attorney, and I would advise you to seek one that is close to the court in Barstow. (Otherwise, he/she is going to be doing some commuting.) An attorney can appear in Barstow on your behalf, thus minimizing your need to commute to and from the court. Of course, you will have to spend some time with your attorney (and not just on the phone.)

    Yes - you can be charged. However, if it went down like you say, the DA is going to have a hard time deciding whether to charge you with a DUI. Your facts don't equal a clean "refusal DUI." The device you were asked to blow in in the stop location would most likely be a PAS device. You are not required to take the PAS test (unless you are under 21 or currently on DUI probation.) So, a PAS refusal does not equate to a "chemical test refusal."
    The test after arrest is the one that matters. The police asked you to take breath, but, if blood is available, they have to permit you to choose breath or blood. (Did the officer tell you blood was not available? If so, then you were obligated to take the breath test.)
    Whether your insistence on a breath test amounts to a refusal for criminal or DMV purposes depends very much on the detailed facts of your interaction with the police at the time of arrest. See, Peo. v. Brannon (1973), as well as Sanchez v Alexis (1982) and Peo. v. Gonzales (1982.)

    However, to successfully navigate this area of law - for both criminal and DMV purposes - you're going to need a skilled DUI attorney who knows the prosecutors, the courts and most importantly the DMV. Try and go it alone, and you'll most likely get discounted by those players and lose. This is a pretty grey area of law, and those players will be more impressed by an attorney they are familiar with than with you rolling in from Needles after a 2 hour drive in order to play lawyer. (Sorry, but that's my honest assessment.)

    Your matter presents some pretty good issues for you, but to really get the full value of them you're going to need a lawyer. The DA may decline to file on their own (then again...maybe not...you want to run that risk?), but the DMV has already made its position known- and they're not going your way. I wouldn't expect them to change direction just because you ask.

    Good luck


  2. You need representation how did your license get suspended do you have a
    future court date you need to talk with an attorney that practices in that
    area


  3. Just based on the facts that you have presented, there are some fairly complex DUI issues presented. As you know, a DUI involves both a court case and a DMV administrative process. I would encourage you to retain an attorney--many of us on Avvo provide a free consultation. Trying to "beat this yourself" is not a good idea. There are too many pitfalls for the unwary.


  4. First, you did right to refuse the breath test and insist on a blood test. Well done. Regarding representation, it is isn't necessary, it is always an advantage to be represented by an attorney who knows the local courthouse and the local DMV, and who thus knows which strategies are most effective with each.


  5. Representing yourself appears to have worked out great so far as you have lost your license via DMV, were arrested, and likely need to defense against a refusal allegation/enhancement.

    Stop being stubborn and hire yourself the best, locally experienced, criminal defense attorney you can afford ASAP.


  6. What do you mean can you beat this yourself? Sounds like you already lost it if your license was suspended.

    A DUI is not a do it yourself project. Much science and legal knowledge go into building a successful defense. Your case will carry a penalty enhancement of refusing a chemical test based on what you wrote.

    Be smart about it. Get an experienced attorney.

    Any information provided through Avvo.com in response to a question is not, and cannot be considered a formation of any Attorney-Client relationship. Questioner understands that the nature of this system allows only for a cursory review of case information, and more detailed information should not be divulged in this public forum. As such, Questioner is recommended to contact an Attorney in order to discuss the full details of their case and a more specific advisement of potential rights and liabilities.


  7. You need representation. DMV will try to suspend your license for a year. This doesn't happen for at least 30 days from the date of arrest. The court has to give you at least a weekend in jail on top of the other stacks of consequences if you are convicted and the refusal allegation sticks.

    P.S. You failed the FSTs


  8. Let's make sure we're all talking about the same thing.

    When you say you're "suspended," are you referring to the automatic suspension that goes into effect when the officer confiscates your license and writes you up for a refusal? If so, you have 10 days from that date of your arrest to request a DMV hearing to challenge that refusal.

    Listen to these guys and hire someone to help you. You DON'T want to do this on your own.


  9. It sounds like you have an automatic suspension based on your chemical test refusal. Your best chance of beating the DUI and potentially getting your license reinstatement is with a DUI attorney. Do not do this alone. Good Luck!


  10. Yes. You need a qualified attorney. I developed the 4 phases to the DUI stop and arrest. You are only half of the story. The other half is the cop and what he did. 1. Was the stop valid? 2. Was the transition to FSTs valid and sufficient? 3. Was testing sufficient to form Probable Cause to arrest? 4. Were post-arrest procedures done correctly? A mistake anywhere may get evidence suppressed and the case either decreased or dismissed. You must gather all evidence, reports, video, audio, etc. So, yes, you need an attorney to do all of this and bring the appropriate pre-trial motions, etc

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