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What is a Chemical Test Refusal at a DMV Administrative Per Se Hearing?

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What is a Chemical Test Refusal?

Any person who enjoys the privilege of driving a motor vehicle in the State of California only does because they promise to submit to a chemical test of their blood or breath at the request of a law enforcement officer. All drivers holding a California driver license or ANY driver who drives in California from another state are all subject to the provisions of California’s Implied Consent Law. The mere act of driving a motor vehicle anywhere in the State of California implies that you will consent to providing a chemical test of your blood or breath, if you are lawfully arrested for DUI.

Whenever a driver in California is lawfully arrested for suspicion of DUI, but who then declines to submit to such testing, has violated the law through a “Chemical Test Refusal.”

Because the California Vehicle Code (CVC) provides extensive periods of license suspension or revocation as a result of a Chemical Test Refusal, the law provides considerably detailed guidelines that a law enforcement officer must follow when dealing with a driver who refuses a chemical test. At the same time, an equally demanding degree of control is placed on the driver to comply with the reasonable requests of a police officer.

Police Officers have an obligation to ensure all drivers understand the requirements of the Implied Consent Law and that they understand the consequences for refusing a chemical test.   Also, a driver need not articulate their refusal verbally. The simple act of refusing to answer a police officer’s questions or the act of physically resisting a chemical test may all indicate a chemical test refusal.

If you are accused of refusing to submit to a chemical test following an arrest for DUI, the California Department of Motor Vehicles (DMV) will seek to suspend or revoke your driving privilege for a minimum of one year. The only way to avoid this long-term impact on your life is to schedule, conduct and win an Administrative Per Se (APS) hearing before the California Department of Motor Vehicles/Division of Driver Safety. If you are accused of a chemical test refusal, call the DMV Defense Experts at California Drivers Advocates (CDA). We can help you navigate the process of the DMV and work toward restoring your driving privilege.

Can the Police Draw My Blood by Force?

Shocking as it may seem, many California police agencies are adopting the policy of drawing a driver’s blood by means of physical force if the driver is not willing to comply. For many years, it was an accepted policy for police departments to only authorize the forcible drawing of blood samples in felony or fatality cases. Today, however, the use of physical restraint to seize a blood sample in simple misdemeanor cases is increasing in frequency.

Some police agencies require that their personnel seek a “Search Warrant” from a judge before physical force is used to seize a blood sample. On the other hand, some police agencies will allow a driver to be held on the floor of a jail while a blood technician extracts a sample of blood despite their protests. The bottom line is that if a police agency is seeking your blood as evidence of a crime, they’re going to get it one way or another. In the eyes of the DMV, a driver who either physically or verbally refuses to submit to a chemical test has violated the Implied Consent Law.

So, the question clearly becomes, what constitutes a “forced blood draw?” Clearly when a police officer or officers must exert actual, physical restraint and control to overcome a driver’s physical resistance to testing, a “forced blood draw” would apply. But what happens if a driver initially refuses to comply with the officer’s demand for blood but then relents when threatened with physical restraint? What if a driver initially refuses to comply but then relents when presented with a Search Warrant signed by a judge? If the driver verbally contests the drawing of his blood but, in no way physically resists, it is still considered a “Refusal.” A verbal protest against a blood draw carries as much weight as actual physical resistance.

How Does the DMV Establish a Chemical Test Refusal?

When presiding over an Administrative Per Se (APS) hearing where it is alleged the driver refused to submit to a chemical test, the DMV Hearing Officer is obligated to establish four elements:

1. Did the law enforcement officer have reasonable cause to stop or detain the driver?

This is a question of “Probable Cause.” Did the driver commit a violation of the Vehicle Code prompting an enforcement stop by the officer; or was the driver involved in a traffic accident where his driving can be established through circumstantial evidence or; was the vehicle obstructing traffic and the person’s driving can be established through circumstantial evidence. This is often a very strong part of a driver’s defense, because if the officer had no lawful reason to stop or contact the driver, then the suspension must be “set aside.”

In most instances, the prevailing argument here is whether or not the officer actually saw the accused person drive the vehicle, or did any independent person witness the accused driving. In a courtroom environment, driving may be proven simply because the driver had “functional control of the car.” This would normally mean the accused was in the driver’s seat with the key in the ignition and he possessed the immediate ability to drive. At a DMV hearing, however, a California Supreme Court decision requires actual movement of the car. In the case, [Mercer v. Department of Motor Vehicles, 53 Cal. 3d 753, 280 Cal. Rptr. 745, 809 P.2d 404 (1991)], the court reasoned that a lawful arrest for DUI required, “some volitional movement of the vehicle perceived by the senses of the arresting officer.”

Conversely, however, in 2007 the California Supreme Court reviewed this issue again and this time ruled that actual proof of driving was not a necessary element in a chemical test refusal hearing, Troppman v. Valverde, 2007, Cal. 4th (Docket No. 132496). The Chief Justice wrote, “consent may be implied by the act of driving at any time, not only during the time period immediately preceding the individual’s arrest.” Based on this ruling, the Court indicates the mere reasonable cause to believe that the person “had been driving,” is enough to trigger the Implied Consent law.

This is yet another example of how our criminal and administrative justice system confounds and confuses the process. It also provides the DMV Hearing Officer yet another way to sustain a suspension.

 2. Was the driver legally arrested?

The second critical element the DMV must establish was whether or not the driver was lawfully arrested for DUI. California Vehicle section 23612 makes it clear that only those persons who are lawfully arrested for DUI are subject to the Implied Consent Law. Therefore, if it can be demonstrated that the officer had no lawful reason to arrest you, then he would have no lawful reason to demand that you submit to a chemical test of your blood or breath.

 This often comes down to those defenses where the driver can demonstrate that someone else drove motor vehicle. Predominantly, however, a successful attack on the lawfulness of the arrest occurs when your DMV Defense Expert can demonstrate that the officer’s investigation was insufficient to prove that you were intoxicated. If the DMV cannot establish that you were intoxicated, then there could be no lawful arrest for DUI.

3. Following a lawful arrest, did the arresting officer appropriately advise the driver of the requirement to submit to a chemical test of their blood or breath?

California Vehicle Code section 23612 specifically mandates that a driver submit to a chemical test of their blood or breath at the request of a police officer, following a “legal arrest” for suspicion of DUI. That same section, however, clearly demands that the arresting officer advise the accused driver of each and every penalty or consequence should they refuse to comply.

Often the arresting officer will use language to suggest that a driver’s license MAY be suspended for a chemical test refusal when, in fact, the law directs that a driver’s license SHALL be suspended for such a refusal. The simple implication that a person’s license may not be suspended creates an element of confusion in the officer’s advisal.

First of all, the DMV must be able to demonstrate that the original detention or contact with the driver was lawful and then there must be a finding that the arrest was lawful.

A source of “officer induced confusion” occurs when a driver is arrested for DUI and the arresting officer advises the accused of his or her right to an attorney pursuant to the provisions of Miranda v. Arizona. Having just been told that he or she has the right to an attorney, the officer then advises the driver of the Implied Consent Law which specifically omits the driver’s right to counsel before making a decision to submit to a blood or breath test. This is inappropriate and can be a means to defeat an allegation of refusal because the officer has advised the driver they have a right to an attorney and then turns around and contradicts himself.

Yet another source of confusion in a refusal case may occur when a person simply cannot understand what the officer is saying. Case law is replete with examples of a driver not being able to hear the officer’s admonishment due to loud noises at or around the time of advisal. A refusal advisal may not be valid if the officer is speaking to a driver in a language not readily understood by the driver or if the driver is suffering with an injury or medical condition which renders him unable to understand the advisal.

These are all examples of valid defenses at a DMV Hearing that can rebut the allegation that a driver refused to submit to a chemical test. The DMV Defense Experts at California Drivers Advocates conduct scores of “refusal” hearings at the DMV each year. We have built a proven record of victory based upon complete investigation and vigorous representation. Call us, we can help.

4. Being properly advised of the requirement to submit to a chemical test of his blood or breath, did the driver refuse to submit?

What precisely constitutes a chemical test refusal is often a subjective interpretation of events by the arresting officer. Officers will often become frustrated by the requirements that a driver clearly understand the advisal. Officers will often allow their own animosity toward the driver to cause them to allege a “refusal” much too quickly. It is common for officers to misinterpret a driver’s questions as being obstructive or an attempt to cause a delay in the collection of a blood or breath sample when, in fact, the driver is attempting to gather information to make an informed decision. The following items should be considered when determining the validity of an accused refusal:

  1. An arresting officer is not required to repeat the advisal. In the case of Dunlap v. Department of Motor Vehicles [156 Cal. App. 3d 279, 202 Cal. Rptr. 729 (5th Dist. 1984)], “one offer plus one rejection equals one refusal and one suspension.”
  2. If an accused driver elects to submit to a breath test and, during the testing sequence the breath machine malfunctions, the driver is required to submit to another test. In the event the driver declines the additional test, it is deemed a refusal. [Gobin v. Alexis, 153 Cal. App.3d 641, 200 Cal. Rptr. 397 (2nd Dist. 1984)].
  3. As stated above, in question #3, it is common for an arresting officer to create confusion when first advising a driver of their right to counsel pursuant to Miranda and then contradicts himself by advising the driver of his requirement to submit to a blood or breath test, without the advice of an attorney, pursuant to the Implied Consent Law. The confusion may be cured if the officer takes the time to clarify the conflict in the laws and makes clear the driver’s requirement to submit to testing.
  4. Even if a driver has successfully completed a test, it may still be deemed a refusal if, in fact, the driver resisted the test in “any significant way.” This occurs regularly when a driver adamantly refuses to submit a blood or breath test but when threatened with physical restraint, submits to the blood test while verbally protesting [Barrie v. Alexis, 151 Cal. App. 3d 1157, 199 Cal. Rptr. 258 (2nd Dist. 1984)].
  5. A simple recitation of the Implied Consent Law or an actual “verbatim” reading of the law may not fulfill the officer’s requirement to ensure the exact requirements and consequences of the law. Officers will often resort to summarizing the requirements of the law; which may not fulfill his requirements for a full advisal. In an unusual but relevant case, [Thompson v. Department of Motor Vehicles, 107 Cal. App. 3d 354, 165 Cal. Rptr. 626 (5th Dist. 1980)], the court ruled that an officer has the obligation to ensure the driver could hear and understand the advisal. In this instance, a loud police radio made it impossible for the driver to clearly hear and understand the advisal as it was recited by the arresting officer.
  6. It is quite common for a driver to willingly submit to a test but, as a result of a medical limitation, be unable to complete the test. Despite the driver’s clear willingness to comply by selecting a test, if he cannot or does not complete the chosen test, he must submit to an alternate test. If he declines to submit to the alternate test, it is deemed a refusal.
  7. Where a driver has been injured in a traffic accident or an assault and where his ability to comprehend is affected by unconsciousness, head trauma, shock or pain; any refusal to submit to a blood or a breath test is very much in question. In Hughey v. Department of Motor Vehicles, 235 Cal. App. 3d 752, 1 Cal. Rptr. 2d 115 (3rd Dist. 1991), a police officer attempted to arrest a motorcyclist following a traffic accident. Although the driver had no visible head trauma, he did demonstrate odd behavior, in that he appeared to be going “in and out” of awareness. The officer used a degree of force to physically restrain the driver and take him into custody. At the police station the driver flatly refused any chemical testing. In appealing his suspension, the driver argued that as a result of head trauma he could not form the intention to refuse. Section 23612 (a) (5) of the California Vehicle Code, determines that “a person who is unconscious or in a condition rendering him or her incapable of refusal is deemed not to have refused.” An appellate court determined that a driver should be permitted to introduce such evidence which demonstrates “he or she should be deemed not to have refused to submit due to a medical condition unrelated to alcohol use.”
  8. Where an arresting officer advising a driver of his or her requirements to submit to a blood or breath tests speaks to the driver in a language not primarily spoken by the driver, some issue of confusion may arise.
  9. In some arrests, a driver may listen to the arresting officer’s admonishment pursuant to the Implied Consent Law and then, when asked to make a choice between blood or breath testing, the driver simply does not reply. Unwillingness to voice one’s choice of testing is determined to be a “constructive refusal” and will result in a suspension of the license.

Chemical Test Refusal Cases Can be Won. Call CDA Today and We Will Go to Work Fighting Your Case.

The DMV Defense Experts at California Drivers Advocates, combine the knowledge, training and experience of former police officers, former DMV hearing officers, investigators and scientists to provide you the very best in DMV defense.

A DMV hearing that is prepared and presented by CDA is a comprehensive process of investigation, preparation, and execution. Our system works because he covers all aspects of law, science, common sense and DMV procedure.Give us a call and let us go to work for you.

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COVID-19 Update: The California DMV is OPEN!!!The California Department of Motor Vehicles - Driver Safety Office is Open & SUSPENDING Licenses

If you received a notice from the California Department of Motor Vehicles, Driver Safety Office you must act now.

The Driver Safety Offices are still doing business as usual, which means suspending your license. 

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