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What is a DUI Refusal?

In California, a DUI refusal can be more serious that a typical DUI charge. If you have been charged with a DUI refusal you need the assistance of a local DUI attorney in your area.  Did you know you can still be charged with a refusal even if you gave a blood test? DUI refusals are a tricky beast. Technically the law states one request and one refusal equals a refusal. This alone can have the effect of losing your driver’s license for up to 1 year on your first DUI.

One of the pitfalls is what we call implied refusals. This is where you don’t exactly say you won’t give a breath or blood sample but because you can’t blow hard enough into the breath machine and when the cop ask you if you will give blood and you say you don’t like needles, the cop can take this as meaning you refuse.

How do I protect myself?

Get a DUI attorney on your side! Many time the officer will NOT comply with Vehicle Code Section 23612 which requires that he inform you of all the ramifications of a refusal. Many times the officer will fail to give a complete admonishment and this can be crucial in protecting your California drivers license.

 

 

WHERE THE PSUEDO SCIENCE BEGAN

Back in 1975 the National Highway Traffic Safety Administration (NHTSA) gave a grant to the Southern California Research Institute and namely a Dr. M. Burns.  Dr. Burns took 6 of the then currently used Field Sobriety Test and tested which ones had any accuracy in determining if a person’s blood alcohol level was .10 or greater.

The study yielded three field sobriety test. The Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and the One Leg Stand (OLS). These 3 FST’s came to be known as “standardized” field sobriety tests, or SFST.  The word “standardized” means that in order for the FST to be of any validity, the test MUST be given exactly the same each and every time. A good example of “standardized” is a McDonald’s hamburger, whether you buy one in Los Angeles or Japan that hamburger is going to be exactly the same, or as we say, “standardized”

In the original study there were 238 participants who had a BAC range from .00 to .15 with some of the folks receiving a placebo drink. In the original study they started with 6 test that were evaluated in determining if a person was over the .10 legal limit.  At the conclusion of the test the officer were only able to make a correct arrest 76% of the time.

What does that mean? that 24% of the time the COPS GOT IT WRONG!.

WHAT’S THE DIFFERENCE BETWEEN THE (a) and the (b) count?

Normally when someone is arrested they will see that they are charged with vehicle codes sections 23152(a) and 23152(b). Many time the cops will write the numbers .08 next to the (b) count to indicate the “per se” element of the code.

In a nutshell, the 23152(a) means that it is illegal to drive while under the influence of alcohol. 23152(b) means that it is illegal to drive with a blood or breath .08 or greater. It is interesting to note that this (b) section of the code was not added until 1982. Prior to that, the prosecution had to prove you were under the influence.

So all that this means is that the prosecution has in essence 2 opportunity to prove you were DUI.

PLEASE THINK ABOUT THE FOLLOWING – as the answer might affect your case:

1.     Have you ever had your license suspended or revoked?

2.     Does your job require you to travel outside of the United States?

3.     Do you drive a company owned vehicle?

4.     Do you have to prove insurability to your company?

5.     Do you have any security clearance issues at work?

6.     What is your weight?  height? at time of arrest?  Any physical disabilities? Take any meds? 

7.     Any:  Diabetes / Hypoglycemia / Hyperglycemia / Gastric Reflux / Hiatal Hernia / Stomach Ulcers / Hepatitis

        Cirrhosis / Emphysema /  Lung Disorders ?

8.     Do you have a green card? temporary work visa?

9.     Do you have any type of state license? RN? Medical Doctor? LVN?  Dental Hygenist?

10.   Are you going through any type of child custody issues which could be affected by a DUI charge?

11.   Where were you standing when you did the field sobriety testing? Sidewalk? Dirt? Gravel?

12.   When the officer gave you the eye test were the patrol car’s flashing light activated?

13.   What type of shoes were you wearing?

14.   Were you advised by the officer that the roadside breath test was completely voluntary?

15.   Did the officer read you a Miranda Warning?  Did the officer ask you questions after that?

16.   Was your car towed? Did you talk to the tow operator?

17.   Did any officers make any comments to you regarding your sobriety? “you don’t seem drunk to me”

18.   Did you complete a breath test back at the police station? Were you told results?

19.   Did you give blood? Did you watch the blood draw? Did blood tech invert vial? Shake? Nothing?

20.   Did you sign any documents?

21.   Do you know if you were video taped?

22.   Did you refuse any of the test?

23.   Were there any children in the car? Are you charged with child endangerment?

EXCESSIVE BLOOD ALCOHOL HEARING (.08)

There are 3 issues that must be met when the DMV is trying to take away your license.

ISSUE 1:

Did the officer have reasonable suspicion to believe you were driving in violation of cvc 23152  or cvc 23153. This requires that the cop had reasonable suspicion to believe you were a) driving the vehicle and b) you were driving while over the limit. Many times the problem with the DMV’s case will be that they use hearsay to show element (a) and the issue of whether or not you were driving can be shown under element (b).

ISSUE 2:

Were you lawfuly arrested?  This is required under cvc 23612(a) and Mercer v. DMV (1991) 53 Cal.3d 753.   There are 2 elements to a lawful arrest; (a) was there reasonable suspicion for the stop (b) was there probable cause for the arrest.   Whether or not the officer had reasonable suspicion for the stop will rest on the abundant consitutional case that support and define the 4th Amendment to the United States Constitution which is the guardian to our free liberties as an American.    The officer must also establish that you were under the influence of alcohol prior to the arrest.

                  Element (a).  The officer must observe a violation of the law. His observation will be tested objectively against the reasonable officer standard.  This is the usually element where the officer’s fail to follow the U.S. Constitution. When we see a violation of the 4th Amendment we make a challenge under Penal Code 1538.5.  If the motion is granted by the court then an imaginary line in time is drawn and everything the officer observed or collected cannot come into evidence. If there is no evidence then there is no case.

ISSUE 3:

Were you driving a motor vehicle while your blood alcohol level was over a .08%

 

 

1st Time DUI Suspensions

When a person is charged with a DUI they are fighting 2 different entities. The court system is trying to punish you for the DUI and the DMV is trying to take away your driving privileges. One of the first things you need to do is call the DMV for an administrative hearing. Under the law, whenever your rights as a citizen may be affected you are entitled to a hearing in order to protect your due process rights. However, you must call the DMV within 10 days of your arrest.

What if I do not call the DMV for a hearing?

When you got charged with the DUI the arresting officer gave you a “pink” colored carbon paper which is your temporary drivers license. This license will be valid for the next 30 days after the arrest. On day 31 your license will be suspended for the next 4 months. At the end of 4 months you will be eligible for your license again as long as you have an SR-22 on file with the DMV, you  may also be required to be enrolled in a DUI class.

What if I call the DMV for a hearing?

If you called the DMV for a hearing then your “pink” temporary license will be extended a couple of months in order for you to have the hearing and for the DMV to make a finding on the matter. If you did call the DMV within the 10 day limit you will then receive a “new” temporary license in the mail which will be printed on ordinary white paper. The DMV will usually give you approximately a 4-5 month extension, the technical term is called a “stay”.

How do I get a “restricted” license?

A restricted license will allow you to drive to and from work, during the course of work, and to and from your DUI classes. You will be eligible for a restricted license on day 61 following your arrest. The reason is that you had a pink temporary from day 1-30, there is then a mandatory 30 suspension from day 31-60, and on day 61 you will be eligible to apply for a restricted license. Your restricted license will be in effect for 5 months.  In order to apply for a restricted license you will need to be enrolled in a DUI class, have an SR-22 on file with the DMV, and pay the DMV their fee of $140.00.

What happens if I get caught driving on a suspended license?

In lawyer land, this is what we call a 14601.  However, under that code there are several charges and distinctions that need to be made. If you are charged with driving on a suspended license due to a DUI then you most likely will be charged with a 14601.2.   The problem then arises with the DMV in that the will suspend your license for a year and force you to install a ignition interlock device (breathalyzer) on you car.

WHERE IT ALL BEGAN

The analysis of breath testing in trying to determine the BAC in your blood began back in 1927 when a person’s breath was collected in a balloon.  It is hard to believe that many a persons were convicted back in those days on what we now consider fault science.  I anticipate that someday we will look back at this time and wonder how people were convicted on the science of today.

MOUTH ALCOHOL

Mouth alcohol can occur from the recent consumption of alcohol,  the belching or micro burping during the exhale process, or from the hold over of food and alcohol lodged in a person’s tooth cavity.

RETROGRADE EXTRAPOLATION

Retrograde extrapolation is the process of counting backwards in time in order to establish a blood alcohol level at the time of driving. This method is not an accepted science and the top scientist in the world state that this method is unreliable.

In certain cases it may be to your advantage to use retrograde extrapolation.  Let’s assume that you recently consumed alcohol just prior to driving and approximately an hour and a half goes by before you are tested. Based on these facts it is most likely that your blood alcohol was lower at the time of driving rather at the time of testing. In CA, there is a presumption that if your blood test is done within 3 hours of the time of driving then you BAC reading is deemed to be your BAC at the time of driving. However, you can rebut this with affirmative evidence through the testimony of an expert to show that at the time of driving your BAC was actually lower than at the time of testing. This is done through retrograde extrapolation.

The word “Extrapolate” means to make a guess at a value that is outside a known range. The meaning alone should not evoke confidence in the process.

BASIC PRINCIPLES:  In order to to a retrograde extrapolation you must have BAC measurements at 2 different points in time.  A dangerous assumption must also be made and that is that you BAC is on the “downslope.”

UNDER AGE DUI

A person who is under the age of 21 at the time of a DUI arrest faces additional consequences from that arrest.  A minor be charged with the adult vehicle code violations of 23152(a) & 23152(b).   A minor can be charged with vehicle code 23140(a) which is .05% or more of alcohol, and can be charged with vehicle code 23136(a) which is .01% or more of alcohol.

The ramifications of any guilty plea to any of the above mentioned codes is that the minor’s license will be suspended for a minimum of 1 year. The DMV does allow for a critical need to drive license but the standard must be shown that your need is critical for the family unit. This could include taking and picking up a sibling from school, or taking elderly grandparents to medical appointments.