Chemical Test Refusal (CA)

V C Section 13353 Refusal of Chemical Test

If you get arrested for a California DUI it can have some pretty severe penalties. Being arrested for a California DUI and then allegedly refusing to submit to a chemical test can cause even greater punishment…including mandatory jail time and a one-year drivers license suspension.


What is California’s “Implied Consent” DUI Law?

California DUI law, like that of most other states, contains an “implied consent” rule. This law states that if you drive a car in California, and are lawfully arrested for a California DUI, you are deemed to have given consent to the chemical testing of:


  • your blood,
  • your breath, or
  • your urine (only in cases where you are suspected of driving under the influence of drugs).


This means that you have to submit to a chemical test to determine the alcohol and/or drug content in your body after you have been lawfully arrested for a California DUI.

“After” is the operative word. The hand-held Preliminary Alcohol Screening (PAS) test that may be offered at the side of the road before you get arrested is not mandatory under this law. The PAS test is considered a field sobriety test (FST)…and FSTs are just tools to help the officer decide whether to arrest you for DUI.

This means that submitting to the PAS and then refusing to submit to a subsequent chemical test after your arrest is be considered a refusal.

Although the PAS test is optional for adults, it is mandatory for those under 21. If you are under 21 and suspected of DUI, you are also deemed to have given consent to the PAS and an additional blood, breath, or (where applicable) a urine test.


What Qualifies as a DUI “Refusal”?

Although the concept of “refusing” a chemical test may seem straightforward, it isn’t exactly that way. There are a variety of situations that may invite a refusal allegation. The following are some scenarios that you should be aware of:

  • You don’t always have a choice of testsMost California DUIs involve alcohol. Breath and blood tests are therefore the first tests that are typically offered, as these are the tests that most accurately test for alcohol consumption.

    *Note: Urine tests have been determined to be too unreliable in detecting alcohol. As a result, a urine test would only be used for alcohol detection if, for some bizarre reason, neither a breath nor blood test were available.

    If you take a breath test that comes back lower than the officer expected, you may additionally be asked to submit to a blood or urine test. Blood and urine tests are used when you are suspected of driving under the influence of drugs or a combination of drugs and alcohol.

    Once the officer tells you which tests you will be given, you don’t necessarily have the right to insist on a different one. This means, as an example, that you can’t choose a urine test instead of a breath or blood test if you’re suspected of an alcohol-related DUI. Doing so will be construed as a refusal.

    Also, if you are a hemophiliac or are on certain heart medications, you are exempt from taking a blood test. If a breath test isn’t available, you may be asked to provide a urine sample.

    *In that type of situation, you don’t have the right to demand that the officers find a breath testing instrument. If you don’t submit to the urine test, you will be charged with a refusal.

    The bottom line is that you only have a choice of tests when a choice is given to you.

  • You Only Have One Chance to Submit to a Test“One offer plus one rejection equals one refusal”.  California DUI law holds that you only have one chance to submit to a test. This means that if you initially refuse to provide a blood, breath, or urine sample (but then later change your mind and agree to take one), it may be too late. The officer is under no duty to provide you that second chance. Also…
  • Your Silence will be Construed as a RefusalYour silence in the face of repeated requests to submit to a chemical test is considered a refusal.
  • Failing to Complete a Test is the Same as Refusing a TestWhen you are advised by the arresting officer of your duty to submit to a chemical test, he/she specifically advises you that:
    1. Your failure to submit to, or
    2. Your failure to complete

    a chemical test will result in additional penalties, including jail time and a driver’s license suspension.

    • Examples:If you decide to take a breath test but purposely don’t blow hard enough to produce a sample, your actions may be considered a refusal. (However, it must be a “willful chemical test refusal.” So if you couldn’t blow hard enough because of asthma or insufficient lung capacity, this may be a good defense against an allegation of refusal).

      Also, if you agree to submit to a urine sample but are unable to release the required amount of urine, you actions may be considered a refusal.

      Under either scenario, the arresting officer would likely give you one more opportunity to complete a different test. However, if you were unable to succeed on the second try, that would probably be your last opportunity to do so.


With that being said, if you choose to take your California DUI to jury trial, the jury will decide whether you in fact “willfully refused” to submit to a chemical test.

On that note, the jury will be given a special jury instruction with respect to your alleged chemical test refusal. The judge will instruct the jury that they may (but are not required to) infer that you refused because you knew you were guilty of DUI.

What Are the Penalties that I Face if I Refuse to Submit to a Chemical Test?

If you refuse to submit to a chemical test, both the California DMV and California Superior Court will take action.

The DMV and California DUI Chemical Test Refusals

If you refuse to submit to a chemical test, the DMV will automatically suspend your license. Once you are arrested, you have ten days to request a California DMV hearing to contest that suspension. Doing so may postpone your suspension, pending the outcome of the hearing.

There are only four issues that will be addressed at the hearing:

  1. Did the arresting officer have reason to suspect that you were DUI?
  2. Were you lawfully arrested?
  3. Were you properly advised that your license would be suspended for one year or revoked for two or three years if you refused to submit to or failed to complete a chemical test?
  4. Did you willfully refuse to submit to or fail to complete a chemical test after the officer asked you to do so?


If you prevail at this hearing, you license will not be suspended by the DMV. If, however, you are unsuccessful, your punishment will include:


  • A one-year driver’s license suspension for your first DUI offense,
  • A two-year license revocation for your second DUI offense within ten years, or
  • A three-year license revocation for your third DUI offense within ten years.


It is important to note that the DMV takes this action regardless of what happens during your court proceedings. That being said, there are circumstances where a license suspension/revocation could be lifted. Those will be addressed below.

The Court and California DUI Refusals

Refusing a chemical test could actually have a positive impact on your court case. Without corroborating chemical test results, the D.A. may not believe that the arresting officer is credible or articulate enough to convince the jury that you were DUI. In that event, your DUI charges could be reduced or dismissed.


  • Reduced Charges and the DMVSuppose you plead guilty or “no contest” to a reduced charge of California reckless driving, but the DMV ruled against you at the DMV hearing. Your DMV license suspension/revocation will remain in effect. Similarly, if the prosecutor dismisses the refusal allegation but still has you plead guilty to a DUI, your suspension/revocation will remain. But…
  • Dismissed Charges and the DMVSuppose your charges get dismissed by the court or the D.A. decides not to file your case. You may be entitled to have a subsequent DMV hearing to try to get your suspension/revocation lifted. However, even with this favorable court result, there is no guarantee that the DMV will follow suit.

If the D.A. is unwilling to reduce your charge and requires you to either (1) plead guilty or “no contest” to DUI with the refusal enhancement, or (2) take your case to trial and lose, a conviction will result in the following sentence:

  • An additional 48 hours in a county jail for your first DUI offense and a minimum nine-month California DUI school,

    *This DUI School requirement is in lieu of the three-month program that is imposed for California DUI convictions that don’t involve refusals.

  • An additional 96 hours in a county jail for your second DUI offense within ten years,
  • An additional 10 days in a county jail for your third DUI offense within ten years, or
  • An additional 18 days in a county jail for your fourth or subsequent DUI offense within ten years.*These penalties are simply “enhancements” that will be imposed in addition and consecutive to any other DUI sentence imposed by the court.

Can the Officer Force Me to Submit to a Chemical Test Against My Will?

Yes…assuming three conditions are met:


  1. That the circumstances require prompt testing,
  2. That the arresting officer reasonably believed that you were driving under the influence, and
  3. That the test was administered in a medically approved manner in accordance with a lawful arrest.


A blood test is the only chemical test that could forcefully be applied. People have too much control over how they provide a breath or urine sample to force either of those chemical tests.

Let us explain how these three requirements are actually met.

With respect to the first, the California Supreme Court held that “the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system” 5. This theory serves as the basis for why prompt testing is required.

The arresting officer will rely on his/her observations to support the second requirement. Your objective symptoms of intoxication, the manner in which you drove, and your performance on the FSTs will support the officer’s reasonable belief that you were DUI.

Finally, as long as you were lawfully arrested, a forced blood draw is legally authorized so long as (1) there is no unreasonable risk of infection or pain 6, and (2) the officer doesn’t employ “excessive” force to do so 7.


*Incidentally, even if you know that you aren’t guilty of DUI and are therefore being unjustly arrested, you are still required to submit to a chemical test if you have been “lawfully” arrested.

A “lawful arrest” simply means that the officer had “reasonable cause to believe” that you were impaired by drugs and/or alcohol at the time you drove.

How Do I Defend Against a California DUI Refusal Charge?

There are several defenses that a qualified California DUI refusal lawyer could argue on your behalf in an effort to get your acquitted of the refusal allegation. The following is a brief summary of some of the most common:


  • There was no “lawful” arrestIf the officer didn’t have “probable cause” to stop you or didn’t have “reasonable cause to believe” you were DUI, then you suffered an unlawful arrest. An unlawful arrest will result in a dismissal of your DUI and refusal charges.

    If, for example, you were arrested for DUI, but the officer didn’t actually see you drive…he/she only saw you sitting in your parked car with the engine running…that could amount to an unlawful arrest. Or if the officer arrested you for DUI even though there simply wasn’t sufficient evidence you were impaired, this could make the arrest unlawful.

  • You were not driving under the influenceIf you are acquitted of the DUI charge…and it was therefore determined that you weren’t driving under the influence…whether you “refused” is a moot point. The refusal allegation will be dismissed along with your California DUI case.
  • The arresting officer didn’t advise you of your obligation to submit to a chemical testCalifornia law requires that the arresting officer must advise you as to the consequences of refusing to submit to a chemical test. Failing to do so is a fatal flaw for the prosecution and will result in the dismissal of your refusal allegation.
  • You were incapacitated and therefore weren’t able to consentIf for example, you had a medical condition which rendered you incapable of submitting to a test, your refusal can’t be held against you. 9 However, neither voluntary intoxication nor any other self-induced condition will excuse your refusal. 10
  • The “refusal admonition” was confusing or misleadingThe refusal admonition must be given in a clear and unambiguous manner. If it isn’t, that may explain and justify your refusal. If, for example, the officer merely advised you that your refusal “could” (as opposed to “would) result in a license suspension/revocation, it may override your refusal allegation.

If you have additional questions or would like to confidentially discuss your case, we invite you to contact us.