San Diego DUI Test Refusal Attorney

California's implied consent law, Vehicle Code section 23612, says that by driving on the roads of this state you have already agreed to submit to a chemical test of your blood or breath if you are lawfully arrested for DUI. When the DMV or the District Attorney alleges you refused, the consequences attach to the refusal itself, independently of whether you were actually under the influence.

That independence is what makes these cases dangerous. A refusal suspension can take your license for a year even if the criminal case is reduced or dismissed outright. It is also why the refusal allegation deserves its own defense rather than being treated as a footnote to the DUI. Marc Kohnen has been handling these cases in San Diego since 2008.

What the Refusal Adds to Your Case

A refusal allegation stacks consequences on top of the underlying DUI:

• A one-year license suspension for a first refusal under Vehicle Code section 13353, with two and three year periods for subsequent refusals
• Mandatory additional jail time under Vehicle Code section 23577 on a conviction
• The longer nine-month licensed alcohol program instead of the standard three-month program
• No eligibility for a restricted license during the refusal suspension, unlike a standard first-offense suspension
• An argument to the jury that the refusal showed consciousness of guilt

Which Tests You Can Refuse

This is the single most misunderstood part of California DUI law, and the confusion is understandable, because the answer depends on which test and when.

The preliminary alcohol screening test — the handheld device offered at the roadside before arrest — is generally voluntary for an adult driver who is not on probation for a prior DUI. Officers are required to advise you that it is voluntary, and they do not always do so clearly. Declining a PAS test in that situation is not a refusal under the implied consent law, though it is frequently written up as though it were.

The evidentiary test after a lawful arrest is different. That is the test section 23612 covers, and declining it does carry the refusal consequences. Two conditions have to be met first: the arrest has to have been lawful, and you have to have been properly advised of the consequences of refusing.

Blood Draws Require a Warrant

There is an important constitutional limit here. In Birchfield v. North Dakota, the United States Supreme Court held that a breath test may be required as a search incident to a lawful DUI arrest, but a blood draw is a significantly greater intrusion that ordinarily requires a warrant or a recognized exception to the warrant requirement. And in Missouri v. McNeely, the Court held that the natural dissipation of alcohol in the bloodstream does not by itself create the kind of emergency that excuses getting a warrant.

The practical consequence is that where officers took blood without a warrant and without valid consent, both the blood result and the refusal allegation built around it are open to challenge. In a case where you were unconscious, or where consent was obtained by telling you that you had no right to decline a blood test, these issues can decide the case.

Was It Actually a Refusal?

The law requires a clear advisement and a clear refusal. Neither is as common in the reports as you might expect, and this is where these cases are won.

The admonition officers read has to convey specific information: that a test is required, that you may choose blood or breath, that there is no right to speak with an attorney first, and what the consequences of refusing are. An incomplete or garbled admonition undercuts the refusal. So does confusion that the officer created — asking to call a lawyer before deciding is not a refusal if you were never told that you have no such right at that stage.

Then there is the question of what you actually did. Silence, hesitation, or asking questions are not refusals. Neither is a genuine physical inability to complete a breath test, which is common with asthma or another respiratory condition, and which the officer is supposed to respond to by offering the alternative test. A driver who asks for the test they were told they could choose and is denied it has not refused. Where an injury or medical condition prevented compliance, the medical records matter as much as the police report.

• Was the arrest itself lawful — if not, no valid refusal follows from it
• Was the full statutory admonition given, in language you could understand
• Was the PAS test written up as a refusal when it was legally voluntary
• Did a medical or physical condition prevent you from completing a breath test
• Were you offered the choice between blood and breath that the statute requires
• Is the refusal documented in the report and on video, or only asserted afterward

The DMV Hearing Is Where This Starts

The one-year suspension comes from the DMV, not the court, and the DMV moves first. You have ten days from the date the suspension order was served on you to request an administrative hearing. If that request is not made, the suspension takes effect without anyone ever examining whether a valid refusal occurred.

At the hearing the department has to establish that you were lawfully arrested, that you were properly advised of the consequences of refusing, and that you then refused or failed to complete a test. Each of those is a place to put pressure, and the arresting officer can be subpoenaed and questioned about the admonition and about what you actually said.

Talk to Marc Now

Refusal cases reward early work more than almost any other DUI posture, because the evidence that decides them — body-worn camera footage, patrol vehicle video, the exact wording of the admonition, jail intake records, medical records — is time-sensitive and has to be requested before it is gone.

If a refusal has been alleged in your case anywhere in San Diego County, call (619) 398-2500 for a free, confidential consultation. Marc handles the DMV hearing and the criminal case together, and the line is answered 24 hours.

More on DUI & DWI

• DMV Hearings — Ten days to demand a hearing under VC §13558 — or the suspension takes effect without one.
• First Offense DUI — VC §23536 penalties, probation terms, and where a first-offense case is actually won.
• Felony DUI — Injury, a fourth offense in ten years, or a prior felony DUI — state prison exposure under VC §23153 and §23550.
• DUI of Drugs — No legal limit means the People must prove real impairment — cannabis, prescriptions and the DRE evaluation.
• Underage DUI — Zero tolerance at 0.01% under VC §23136 — a one-year suspension with no conviction required.

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