Test Refusal

One of the most frequent mistakes made by drivers is the refusal to submit to a chemical test.

Many of my refusal clients thought that if they didn't give the police a sample of their blood or breath then the court couldn't convict them. This is incorrect, as an Orange County DUI test refusal lawyer can explain. Refusing to submit to the chemical test upon a lawful arrest for DUI can result in additional penalties above and beyond the penalties for driving under the influence.

So let's start at the beginning.

Your Driving "Privilege"

When you apply for and receive a California Driver's License (CDL), you promise that you will submit to a chemical test upon demand of a peace officer.

This means that you have to give blood, breath or urine (where drugs are suspected) whether you like it or not. This is known as the "Implied Consent" law.

So What is a Refusal?

Prior to a lawful arrest for driving under the influence, you are not required to submit to a chemical test. While the law allows the officer to conduct what is called a preliminary breath test to establish a basis for the arrest, you are not required to submit. However, refusing to submit to a preliminary breath test does not mean that the officer will not arrest you based on other observable evidence.

Once an officer arrests you for driving under the influence, you are required to submit to a chemical test or face penalties for refusing to submit to the test. Those penalties are discussed in more detail below.

A Refusal occurs where a driver does one of the following:

  1. Absolutely and unequivocally will not test.
  2. Avoids testing by not blowing hard enough into the breath test device.
  3. Claims a fear of needles and won't submit to a blood test, but then doesn't blow hard enough into the breath test device when offered it.

Now there may come a time when someone just can't blow hard enough into a device, but they will have to submit to a blood draw. If a driver attempts to go back and forth too many times in this process, the officer may conclude that the driver is dodging his responsibility and declare it a Refusal.


The officer has a set of statements that he should read to the driver to advise him that if he fails to submit to the chemical test, it will mean a refusal and a one-year driving suspension (for a first offense and two years for a second offense).

You should know that, unlike a DUI driver license suspension without a test refusal, there are no restricted licenses offered by the DMV for Refusal suspensions.

Additionally, case law has stated that "one offer and one rejection" equals a refusal.

While it is often wise to refuse to speak to the police without the presence of a DUI test refusal attorney in Orange County representing you, in the case of a DUI, refusing to submit to the chemical test until your attorney is present amounts to a refusal. If you ask for your attorney, and the cop denies it, and you are admonished about the consequences of the refusal, and you ask for an attorney again, it's a refusal.

Fighting a Refusal

There are a number of options for drivers facing a DMV suspension and/or a court case.

  1. Challenge the stop.
    Did the police officer lawfully stop you? This analysis is on a case by case basis. Were you: speeding; weaving; driving too slowly; throwing stuff out of your car, or; ran a light or stop sign?

  2. You didn't actually refuse a chemical test.
    This can occur where a police officer just gets annoyed with questions asked by the driver and unilaterally declares the testing period closed. This defense is successful after we have obtained video and audio and challenged the cop at the DMV hearing.

  3. Your refusal wasn't "willful".

In order for the DMV to suspend or revoke your driving privilege they must prove that you intended to avoid taking any chemical test. This challenge is highly dependent on the facts. You should consult an Orange County DUI test refusal attorney if you are in this situation. Merely asking a few questions about the process which has the effect of delaying the test doesn't constitute a refusal. Nor does a failure to blow into the breath test device with sufficient force, by itself, mean you refused.

Forced Blood

Sometimes, the police suspect that a driver has drugs in his system, not alcohol. This creates a problem for the officer, because a breath test won't reveal the presence of drugs. So the officer cannot offer you a choice. He must obtain a blood sample. But what if you don't want to give it?

Alternatively, if a driver won't give breath or blood, the law holds that because blood will move in and out of the body within a relatively short period of time, the police can protect the evidence by forcing the driver to give blood.

This is a dramatic situation, sometimes requiring a driver to be held down against his or her will into a chair so that blood may be drawn.

Note: The police can only do this if it's done in a medically approved manner and they don't use "excessive force". Again, this situation is on a case by case basis. Merely holding someone against his will in a chair cannot necessarily mean excessive. Were aggressive acts used, fists, kicks and hair-pulling, this could constitute excessive force.

Consequences of a Refusal

DMV: The law is clear: Refusing a chemical test is an immediate one, two or three-year suspension or revocation. You are entitled to an administrative hearing, however.

Court: Following a conviction, the court will inform the DMV of that fact and the Department will suspend your privilege.

Note: If you won your DMV hearing, the court conviction will cause a suspension of your driving privilege anyway. Alternatively, you could win the court case, or have the refusal enhancement struck, but still lose the DMV hearing and suffer the suspension.

There is no way to logically explain this, but it lies in the fact that different branches of the DMV take actions for different reasons. These branches do not "talk" to one another, despite the obvious and unfair impact on drivers. As an experienced DUI test refusal lawyer in Orange County, I am familiar with the nuances of this system. Additional discussion regarding the two separate proceedings—the administrative hearing and the criminal court case—are discussed in my blog posts:

For additional information on test refusals, see here.

Orange County DUI Lawyer Blog - DUI

Anyone who is arrested should contact an experienced Orange County DUI Criminal Defense Attorney to determine whether or not their Fourth Amendment rights against unreasonable searches and seizures, were violated.

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