It seems that there has been a recent uptick in the number of DUI’s that are being charged as chemical test refusals. Legally speaking, chemical test refusal occurs when a police officer lawfully arrests someone for DUI, admonishes that person of their requirement to submit to a chemical test, and that person refuses to submit to a chemical test. Factually, however, whether a person refused or not is somewhat of a gray area.
For instance, if a person is lawfully arrested by a police officer and tells the officer that he wants an attorney before he decides to submit to a chemical test did that person refuse? Typically yes, that is considered a refusal. Part of the admonition states that a person does not have a right to an attorney before he decides to submit to a chemical test. So, under the current law a person has a right to counsel regarding whether he wants to speak to a police officer after being arrested. However, that right to counsel does not include telling an officer “yes” or “no” to a chemical test after being arrested for a DUI.
What if the person decides to exercise his right to remain silent instead of his right to counsel? Will that still count as a refusal? Typically, in the law exercising the right to remain silent cannot be used against you in a court of law. However, DUIs are treated differently. Typically, a person will suffer a license suspension for a refusal if he chooses to remain silent and not agree to a test. There are exceptions, however. For example, if someone is medically unable to give consent under the circumstances.
What if you initially refuse all tests and 30 seconds later you change your mind? Is that still considered a refusal? Unfortunately, once a person refuses the officer is not required to give that person another chance to submit to a chemical test.
What if you refuse and the officer get a search warrant from a judge to get the blood from your veins? Is that legal and is that a refusal? To answer the first question, yes, assuming the officer has followed appropriate laws and regulations, an officer can get a search warrant for the blood in your body. The fact that the officer now got the blood does not change the fact that the person refused. Even if that person changes his mind and consents right before the needle penetrates his skin. The fact that there was a refusal allows the officer to still get the blood via a search warrant and charge a refusal.
In conclusion, DUI laws tend to provide law enforcement agencies creative ways to get around the rights of the individual. Hopefully you found this edition of the blog informative.
Note: The above summary doesn't mean an allegation of "refusal" before the DMV will always result in a suspension/revocation of a driver's license. We have been successful in having the DMV "set-aside" many refusals over the last 3 decades.