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California Legislature moves to criminalize Chemical Test Refusals in DUI Cases

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On February 15, 2017, Assemblyman Thomas Lackey, R-Antelope Valley, introduced Assembly Bill 702, in an effort to make it a criminal offense for any person arrested for DUI in the State of California, to willfully refuse to submit to a chemical test of their blood, breath, or urine to determine their blood/alcohol concentration.

Under current law, judges may consider a concentration of alcohol in a person’s blood of 0.15% or more, by weight, or the refusal of the person to take a chemical test as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.

If voted into law, AB 702 would change the provision described above to no longer permit a court to consider a person’s refusal to take a chemical test as a special factor, but to consider it as a separate criminal offense which carries its own penalties.

This bill would repeal the presumption that a person consents to submit to chemical testing of his or her blood or breath and would instead require a motor vehicle driver who is lawfully arrested for a specified DUI offense to submit to chemical testing of his or her blood or breath for the purpose of determining the alcoholic or drug content of his or her blood. The bill would require a peace officer to advise the person, as specified, that he or she has the choice of taking a chemical test, but that failure to take a blood or urine test will result in suspension or revocation of his or her driving privilege, and refusal to take a breath test will result in the same penalty and a fine or mandatory imprisonment if the person is convicted of a specified DUI offense. The bill would require a person exempted from the blood test requirement because of hemophilia or a heart condition, as specified, to submit to, and complete, a breath test or a urine test, as specified.

So, if a court determines that a police officer has lawfully arrested a driver for suspicion of driving under the influence, and if that person unlawfully refuses to submit to a specified chemical test; that person shall be convicted of a criminal act and shall be punished in the same fashion as a person who’s blood/alcohol concentration is above the legal limit.  Essentially, a person can be convicted for refusing a chemical test without ever being convicted of driving under the influence.

An Excerpt of the Legislation reads as follows:

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1.

The Legislature finds and declares all of the following:

(a) Driving on public streets and highways in California is a privilege subject to reasonable conditions.

(b) Requiring a person who is lawfully arrested for a violation of Section 23140, 23152, or 23153 of the Vehicle Code to submit to a chemical test to determine the alcoholic or drug content of his or her blood or face suspension or revocation of his or her license is a reasonable condition imposed on the privilege of driving.

(c) Requiring a person who is lawfully arrested for a violation of Section 23140, 23152, or 23153 of the Vehicle Code to submit to a breath test to determine the alcoholic or drug content of his or her blood or face penal consequences for refusing to submit to the breath test is a reasonable condition imposed on the privilege of driving.

(d) The imposition of the reasonable conditions described in subdivisions (b) and (c) may be viewed as an implied consent law.

(e) A person who obtains his or her driver’s license in California, if informed of these reasonable conditions at the time of obtaining the license, may be viewed as having provided advance consent to the chemical tests.

SEC. 2.

Section 23577 of the Vehicle Code is repealed.

SEC. 3.

Section 23577 is added to the Vehicle Code, to read:

“(a) It is a crime for a person to willfully refuse to submit to, or willfully fail to complete, a breath test pursuant to Section 23612 after being lawfully arrested for a violation of Section 191.5 of the Penal Code or Section 23152 or 23153 of this code. A person shall be punished as follows….”

While proponents of the legislation decry that this step is necessary to staunch the tide of misery and destruction left in the wake of drunk driving accidents, opponents argue the passage of such invasive laws make it a crime to assert one’s rights against self-incrimination.  This is similar to an accused person being punished by a court by asserting their right to not confess to a crime. Currently, AB 702 remains under review and has not yet been adopted.

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