WHEN IS A DUI REFUSAL REALLY A DUI REFUSAL?

Nov 15, 2014 @ 01:18 PM — by Myles L. Berman

Generally, the state of California states that a person arrested for DUI will suffer severe license consequences when the DMV can show that a peace officer had reason to believe that the arrestee was driving under the influence or in excess of the legal limit, whether the officer arrested the arrestee, whether the officer requested the person to submit to a chemical test, and whether the arrestee (if capable of refusing) refused the chemical test after being told that he/she would suffer a license suspension for failing to complete or refusing a chemical test.

As you read above, the officer must believe that the person drove in violation of the DUI laws.  What if that person is not driving at the time the officer comes and requests a sample?  Well, as discussed in prior blogs, the officer can rely on circumstantial evidence to make the determination of driving.  So, if the officer comes upon a person at a public park who is sleeping in the back of her car with empty beer bottles and that person appears impaired, the officer can request a chemical test from that person.  Some may argue that the person likely consumed that alcohol at the location and AFTER driving.  However, the law focuses on what the officer’s determination was when he arrived at the scene.  Absent facts to indicate otherwise, the officer can legally have reason to believe the person violated DUI laws.

Another event that must occur is the officer must have lawfully arrested a person prior to requesting a sample.  What constitutes a lawful arrest is very complicated analysis.  For the person of today’s blog I will only focus on arrest.  If the person was never arrested then there cannot be a refusal.  For example, a person is in an accident and an ambulance takes the person to the hospital.  If an officer arrives at the hospital and requests a sample without arresting that person and that person refuses the officer’s request for a sample, then the DMV will have an extremely difficult time proving the person refused to provide a chemical sample.

The officer is also required to advise a person of the consequences of refusing a chemical test.  Legally, this is called the “Admonishment”.  If the officer fails to admonish the arrestee, then there is no refusal.  Here’s a fun example.  What if an officer prepares to read the Admonishment to an arrestee but the arrestee is being loud, swearing at the officer and difficult to deal with?  Can the officer argue that the person’s conduct excused the officer’s responsibility to admonish him/her? The answer is no.  The obligation to admonish is on the officer – not on the arrestee.  Under these circumstances, the person was not advised of the consequences of refusing and as such should not be punished if he/she refused to provide a chemical test.

Lastly, from the law as set out above, it is obvious that a person must be capable of forming consent.  Typically when dealing with the capability (or lack thereof) of forming consent, California law focuses on the state of mind of the person who is charged with the responsibility of forming consent.  If the person’s mind is impaired for some reason (usually medically) then the person may be legally determined incapable of consenting.  However, the standard is pretty high.  One can’t argue, for instance, that he is way too drunk to be able to consent. 

Well, I hope you enjoyed this week’s blog entry.  Stay tuned for more fun DUI facts in future blogs.

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