Refusal to Take a Breath or Blood Test after a DUI Arrest
When lawfully arrested for driving under the influence, the person is required under state
law to submit to a chemical test. The DMV will attempt to suspend the person's license if
they are ultimately found to have refused a test. The California Supreme Court held in
Daniels v. DMV that the Department of Motor Vehicles has the burden of proof and that
there must be sufficient evidence of facts in order to justify the suspension of a drivers
license. That Court held that the licensee has no burden to rebut or contest evidence until
the DMV has established such a prima facie case.
The law requires that the DMV establish facts by competent admissible evidence
that the licensee "refused" a chemical test once a hearing is requested.
The issues relating to a hearing for a refusal to submit to or failure to complete a
chemical test are as follows:
1. Did the peace officer have reasonable cause to believe the licensee was
driving a motor vehicle in violation of §23152 or §23153 of the Vehicle
2. Was the person lawfully arrested?
3. Was the person told that his or her driving privilege would be suspended for
one year, or revoked for two or three years if he or she refuses to submit to,
or fail to complete, a chemical test?
4. Did the person refuse to submit to, or fail to complete, a chemical test after
being requested to do so by a peace officer."
When the DMV initiates the action to suspend, the agency must produce sufficient
facts to support every element in the allegation. Although Government Code §11513(C)
allows for the use of hearsay evidence for the purpose of supplementing or explaining other
evidence, it shall not be sufficient itself to support a finding. See generally Lake v. Reed
(1997) 16 Cal. 4th 448. Moreover, the CHP 202 form utilized in the arrest of a DUI suspect
is not an official record of the Department of Motor Vehicles and has not been "approved"
formally under Vehicle Code §23158.2. When there is insufficient competent admissible
evidence in the case for the Department to sustain a finding of each of the foregoing issues,
the DMV must set aside the action.
It is well-settled that advisal of the mandatory consequences for failure to submit
to a chemical test is one of the essential elements that must be proven before the DMV can
suspend a persons license pursuant to Vehicle Code §13353. See the case of Giomi v.
Department of Motor Vehicles (1971) 15 Cal. App. 3d 905.
The California Vehicle Code contains the language the peace officer must advise any
arrestee prior to requesting the person submit to a chemical test. The statute, in
pertinent part is as follows:
". . .the person shall be told that his or her failure to submit to, or
the failure to complete, the required chemical testing will result in
a fine, mandatory imprisonment if the person is convicted of a
violation of §23152 or §23153, and (a) the suspension of the
persons privilege to operate a motor vehicle for a period of one year,
(b) the revocation of the persons privilege to operate a motor
vehicle for a period of two years if the refusal occurs within ten
(10) years of a separate violation of §23103 as specified in §23103.5,
§23152, or §23153 of this Code, or §191.5 or paragraph (3) of
subdivision (c) of §192 of the Penal Code which resulted in a
conviction, or if the persons privilege to operate a motor vehicle has
been suspended or revoked pursuant to §13353 or §13353.2 for an
offense which occurred on a separate occasion, or (c) the revocation
of the person's privilege to operate a motor vehicle for a period of
three years if the refusal occurs within §23152, or §23153 of this
Code, or §191.5 or paragraph (3) of subdivision (c) of §192 of the
Penal Code, or any combination thereof, which resulted in
convictions, or if the persons privileged to operate a motor vehicle
has been suspended or revoked two or more times pursuant to
§13353 or §13353.2 for offenses which occurred on separate
occasions, or if there is any combinations of those convictions or
administrative suspensions or revocations." (Quoted from the Vehicle Code)
In addition, the arrestee must be advised that he or she has a choice of a blood or a
breath test according to the California Vehicle Code. If the person, either is incapable of
completing a test or states that he or she is incapable, the person shall be advised that he or
she must complete one of the remaining tests. See the case of Skinner v. Sillas (1976) 58
Cal. App. 3d 591. Often the arresting police officer will label an individual as a refusal when
they cannot blow hard enough to register a result on the Breathalyzer, however this is
improper, the officer must offer the remaining test to the arrested individual.
The failure of the officer to request a chemical test, advise the arrestee of either his
choice of tests or that a refusal to submit to a test will result in the suspension or revocation
of his or her drivers license precludes the administrative suspension of his or her license by
the Department of the Motor Vehicles. A knowledgeable attorney should be contacted as
soon as possible after the individual is released in order to prevent a mandatory action on
their license. Avoid the biggest mistakes made in a DUI case, call to speak to an attorney