Refusals by Darren Kavinoky

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Refusals
by Darren Kavinoky

Refusals

When a person has been lawfully arrested for a DUI, they are mandated to take a chemical test. If a person refuses, his or her license will immediately be confiscated by the law enforcement officer pursuant to their authority to do so in order to send the license to the Department of Motor Vehicles (DMV) for an Administrative Per Se (APS) hearing. The refusal will be utilized in a criminal case, as a ¨consciousness of guilt.〃 Additionally, evidence of the refusal can be used as a sentencing enhancement, thereby increasing the punishment if convicted for DUI.

The DMV receives notice of the refusal from the peace officer, along with the physical license. The DMV punishes refusals based on the number of times in 10 years the individual has refused to submit to a chemical test:
刋 First-time offenders: Where a chemical test is refused, the DMV will suspend driving privileges for one year.
刋 Second-time offenders: Where chemical test is refused, the DMV will institute a two-year revocation.
刋 Third-time offenders: Where a chemical test is refused, the DMV will institute a three-year revocation.
刋 Four + offenders: Where a chemical test is refused, the DMV will institute a four-year revocation.
The California Vehicle Code defines a refusal in Section 23577. This section states that if a person is lawfully arrested for a DUI and refuses a peace officerˇs request to submit to, or willfully fails to complete, a chemical test(s), the court will impose penalties:
刋 First-time offenders: DUI punishment will be enhanced by an additional term of imprisonment of 48 hours in the county jail
刋 Second-time offenders: DUI punishment will be enhanced by an imprisonment of 96 hours in the county jail
刋 Third-time offenders: DUI punishment will be enhanced by imprisonment of 10 days in the county jail
刋 Four + Offenders: DUI punishment will be punished by imprisonment of 18 days in the county jail.

In a criminal trial, the refusal will be perceived as ¨consciousness of guilt〃 and the jury will be instructed of this in a special jury instruction. CALJIC states:

¨If you find that the defendant was offered and refused a choice of a blood, urine, or breath sobriety test after [he] [she] had been made aware of the nature of the tests and their purpose, that refusal is not sufficient, standing alone and by itself, to establish the guilt of the defendant but it is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether defendant is guilty or not guilty. The weight to which this circumstance is entitled and whether or not that conduct shows a consciousness of guilt are matters for your determination.〃

During sentencing, evidence of the refusal to take a chemical test will be utilized as a special factor justifying whether probation will be granted or not, and in determining additional or enhanced terms and conditions of probation. It may be necessary to spend additional time in jail if probation is not granted. Perhaps participation in a work furlough or work release program will be ordered. Enhanced terms of probation may include numerous hours of community service or CALTRANS work.

Where a person has refused to take a chemical test, and police have taken a blood test by means of a ¨forced blood draw,〃 then this counts as a refusal, even though the personˇs blood alcohol content was measured. The U.S. Supreme Court decided that forced blood draws were constitutional if certain safeguards were followed in the seminal case, Schmerber v. California. Unfortunately, this gives law enforcement and the courts two bites at the same apple, whereby the person not only undergoes the indignity of threats and manhandling at the hands of police, but also gets enhanced penalties as stated above during sentencing.

Author's Biography:

Darren Kavinoky is the founding partner of The Kavinoky Law Firm, a

criminal defense law firm with six offices throughout California. The

attorneys of the firm take pride in their constant continuing legal

education and unparalleled one-on-one client service. Every attorney at

the firm particpates in ten times the amount of education required by

the state bar.

In addition, the attorneys provide each client with a personal cell

phone number, and they make themselves available to clients at all

times. The attorneys of The Kavinoky Law Firm understand that there is

only one case that matters to you: yours! They are dedicated to treating

each client with personal service to ensure satisfaction.

Darren has defended numerous high-profile clients, developed key

relationships with media leaders, and earned public support for clients