If a person is charged with a DUI, and they refused to take a breath or blood test after their arrest, they may face additional consequences if convicted. Note: this is different than the optional Preliminary Alcohol Screening Test given prior to the arrest.
When a driver is issued a California license, they give implied consent to submit for a blood alcohol test if asked to do so by officers after a DUI arrest. When a person refuses to do so, they are violating this previously given consent, and the penalties are taken seriously by the DMV and the government.
Many of our clients do not explicitly refuse to take a blood or breath test, but are unable to do so for various reasons. For example, many people who are overwhelmed and stressed out find it difficult to calmly breathe into a breathalyzer to get an accurate result. Some have asthma and are unable to properly breathe into the machine. Those that are unable to take the breath test and provide usable results, must take the blood test as an alternative. But many times, the officials administering the blood test are unable to find a vein or collect a sample large enough. The driver may also have a fear of needles and cannot submit to the blood these. As a result, the person is unable to take the blood test or the breath test, but have cooperated and provided legitimate attempts to do so.
For example, say Sally is stopped for a DUI and is asked to take a BAC test. She has asthma and does not have her inhaler with her. She, nevertheless, tries to breathe into the machine in order to provide a sample but officers tell her that none of the attempts were valid. She is then asked to take a blood test since the breath test was not valid. They try to take her blood but cannot find a vein and after several attempts, fail at gathering a sample. Sally followed directions and tried to aid the officers in gathering a sample to the best of her ability, but because of uncontrollable factors she was unable to do so.
Unfortunately, the law does not make an exception for such a situation. Sally will still be charged with a refusal, which may lead to additional consequences if convicted. When there is no reading of blood alcohol, whether it is a blood or breath reading, the law views it as a refusal. The reason as to why there was a refusal is irrelevant.
However, an experienced Orange County DUI Lawyer will be able to use evidence of any cooperation on behalf of the client. A knowledgeable attorney will play up a strong argument that the driver attempted with good faith to take the test but was unable to do so due to factors out of their control. With the right powerful defense a DMV hearing officer, or a Criminal Judge may be sympathetic and appreciate the cooperation, reducing the additional penalties on account of the refusal.
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