In California, the Implied Consent Law states that if you refuse to take a chemical test after you are arrested for a DUI, you will lose your driver’s license for one year (or more if this is not your first DUI). This one year license suspension may apply even if you later win your DUI case. The only way to get around this suspension is to fight it at the DMV hearing.
Just like in regular DUIs, you have 10 days from your arrest to request a DMV Hearing. The procedures for this DMV hearing are the same as for a regular DUI, but the issues in a refusal DMV hearing are different. The DMV must show:
(1) The officer had reasonable cause to believe you were driving under the influence;
(2) The officer had probable cause to arrest you;
(3) You refused to take a chemical test after arrested;
(4) The officer read you the admonition about refusing to take a chemical test before your final refusal.
These hearings are difficult to win, but in most cases, you need to request the hearing in order to have a chance at keeping your driver’s license. If you lose the hearing (or never have the hearing at all), you will lose your driving privilege for one year. There are no exceptions and there are no restrictions. In a regular DUI, you can apply for a restricted license after 30 days of suspension. In a refusal DUI, you are struck with a suspended license for at least one year – you can only apply for a restricted license after one year.
Not only are there consequences for a DUI refusal with respect to your driver’s license, there are also consequences for a DUI refusal with respect to your criminal case. First, prosecutors usually request higher penalties when you refuse to take the chemical test. They will require that you take the 9-month first-offender DUI program, which is the longest of first-offender DUI programs. Second, in some counties, prosecutors will add jail time to the penalty. A skilled DUI defense attorney can negotiate the District Attorney’s office to minimize these extra penalties.
Furthermore, a refusal can be used against you if you decided to take your case to trial. The law allows the District Attorney’s office to argue that refusing to take a chemical test is “consciousness of guilt”. In other words, the prosecutor argues to the jury that innocent people wouldn’t refuse to take a test that could prove their innocence. Only guilty people refuse to take chemical test because they know they’re over the limit. This is a powerful argument in the prosecutor’s hands and if you want to go to trial, you need a creative criminal defense attorney that can convince the jury there’s a good reason why an innocent person would refuse to take the chemical test.
DUI refusals are complicated cases that require a criminal defense attorney that knows all the angles. Furthermore, DUI refusals are treated differently in different counties. You’ll want an attorney that has experience at the local courthouses. With offices in Newport Beach, Riverside and Beverly Hills, Fred Thiagarajah has DUI defense experience in Orange, Riverside and Los Angeles Counties.
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