HOW DOES THE DMV DEFINE A REFUSAL?

Nov 24, 2014 @ 06:35 PM — by Myles L. Berman

The California Vehicle provides the following rule for a violation of the Implied Consent Law.

VC section 13353.(a) If a person refuses the officer's request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer's sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, and that the person had refused to submit to, or did not complete, the test or tests after being requested by the officer[.]

The above language was taken directly from the California DMV website. The violations referred to as sections 23140, 23152, and 23153, concern different legal theories of DUI.  As you can see, the statute is not very detailed regarding refusals.  In fact, it is extremely short and nondescript.

When reading Vehicle Code section 13353 you should note that the law is written with the officer’s perspective in mind.  For instance, the focus is on whether the officer had reasonable cause to believe that a person had been driving in violation of the DUI laws.  The law does not focus on whether the driver mistakenly assumed that they were safe to drive.  It also does not state the circumstances in which a person can lawfully refuse a chemical test when requested by a peace officer.  The Code also penalizes an individual for failing to complete a test as well. 

Because the Code on its face does not provide a legal reason for a person to refuse or fail to complete a chemical test, it is up to the creative attorney to investigate the case to show that the officer failed to perform his duties correctly.  This is especially important because as previously stated the Code focuses on the officer’s beliefs and observations.  If you can show that the officer’s conduct was unreasonable, you should be able to secure a set aside.  We have had numerous DUI refusals set aside on behalf of our clients.  Each of these set asides were granted because it showed that the officer did not satisfy the Code with respect to how he/she performed his duties.  

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

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