Defenses to Chemical Test Refusal Allegations
There are several affirmative defenses to the allegation of refusing to submit to or complete a chemical test in relation to driving under the influence (DUI) that a qualified DUI defense attorney can recognize and raise when defending your case. Below are some of the more common defenses that we see in these cases:
The Driver was Not "Lawfully" Arrested
In order for an arrest to be "lawful" two elements must be satisfied:
- There must be probable cause for the stop or detention. This means that the officer must observe the driver violating a law or have reason to believe that a crime is about to occur in order to provide a reason to make the traffic stop.
- The officer must have some reason to believe that the driver is under the influence of drugs or alcohol or both.
If either of these two elements cannot be proven, than the arrest was not "lawful" and you have a defense not only to the refusal allegation under California Vehicle Code Section 23612(a) but to the underlying DUI charge as well.
The Driver was Not Driving Under the Influence of Alcohol or Drugs or Both
In order to be found guilty of refusing to submit to or complete a chemical test, you must first be found guilty of driving under the influence of drugs or alcohol or both. Therefore, if you are found not guilty of DUI then you cannot be found guilty of refusing to submit to a chemical test.
The Driver was Not Advised of His Obligation to Submit to a Chemical Test and the Consequences that Would Result Should he Refuse
California Vehicle Code Section 23612 (a)(1)(D) requires that the officer advise the driver that his failure to submit to a chemical test will result in a fine, mandatory imprisonment, and the various license suspension periods depending on whether it is a first time DUI or if the driver has suffered prior convictions in past ten years. The law states "the person shall be told" of his obligation and the possible consequences. Therefore, an officer's failure to advise you can be a defense to a refusal allegation.
The Driver Who is Unconscious or in a Condition Rendering Him or Her Incapable is Deemed Not to Have Refused
California Vehicle Code Section 23612(a)(5) states that "a person who is unconscious or in a condition rendering him or her incapable is deemed not to have refused." For example, if you've been involved in a car accident and you've suffered a head injury or are in a state of shock which makes it impossible for you to comply with the requirement to submit to a chemical test you will likely have a good defense to a refusal allegation.
The Officer Did Not Effectively Communicate the Obligation to Submit to and Complete a Chemical Test and the Consequences that Would Result Should He Refuse
The officer has some responsibility for determining whether the driver was able to hear and understand what the officer said when admonishing the driver of his obligation to submit to and complete a chemical test. For example, if the officer is advising you of your obligation to submit to a chemical test but you cannot hear him because a nearby police radio is blaring excessively loudly, and it is obvious to both you and the officer that you could not hear any significant portion of the admonition, you will likely have a good defense to a refusal allegation.
Protect Your Rights
A DUI arrest is never as simple as it seems and law enforcement officers are just as capable of making mistakes as any other professional. To protect your rights, contact the Santa Clarita DUI defense lawyers at The Law Offices of Daniel E. Kann today for a free and confidential consultation. We can help you fight the DUI's and chemical test refusal allegations.