Chemical Test Refusal Lawyer in San Jose, CA Implied Consent and Refusal Suspensions

The consent the statute assumes

Section 23612 provides that a person who drives a motor vehicle is deemed to have given consent to chemical testing of blood or breath for the purpose of determining alcohol content, and to a blood or urine test for drug content, if lawfully arrested for an offense allegedly committed in violation of section 23140, 23152 or 23153 (Vehicle Code 23612). Two statements in the section shape what happens at the roadside: a person does not have the right to have an attorney present before stating whether they will submit to a test or before completing one, and the person's failure to submit to, or the failure to complete, the required chemical testing may be used against that person in a court of law.

The admonition the officer has to give

The statute prescribes what the person must be told. The officer must advise that a refusal or failure to complete the required testing will result in a fine and mandatory imprisonment if the person is convicted of a violation of section 23152 or 23153, and that the driving privilege will be suspended for one year, or revoked for two years where the record shows a qualifying prior within ten years, or revoked for three years with two or more. Section 13557 makes that advisement a hearing issue in its own right, requiring the department to determine whether the person had been told that a refusal or failure would result in the suspension or revocation of the driving privilege (Vehicle Code 13557).

The suspension periods, and when they start

Section 13353 directs the department to suspend the driving privilege for one year on a first refusal, to revoke it for two years where the person's record shows a separate qualifying conviction or a prior administrative action within ten years, and to revoke it for three years where two or more such entries appear (Vehicle Code 13353). The qualifying list includes a conviction under section 23103 as specified in 23103.5, section 23140, 23152 or 23153, Penal Code section 191.5 or 192.5(a), and prior suspensions or revocations under section 13353 or 13353.2. The order does not become effective until 30 days after the person is served with written notice, and the statute states that requesting a hearing does not stay the suspension or revocation. Where a refusal suspension and a conviction suspension arise from the same arrest, section 13353 provides that they run concurrently. The DMV publishes the same one, two and three year figures (California DMV).

What a refusal does inside the criminal case

A refusal does not sit only on the license side. Section 23578 provides that in addition to any other provision of law, the court shall consider a concentration of 0.15 percent or more by weight of alcohol in the blood, or a refusal to take a chemical test, as a special factor that may justify enhancing the penalties associated with the offense, including whether to grant probation and, if probation is granted, the terms and conditions of probation (Vehicle Code 23578). Program length also moves. Section 23556 refers a first offender under section 23153 to a program of at least nine months and 60 hours where the concentration was 0.20 percent or more or the person refused a chemical test, rather than the shorter program (Vehicle Code 23556).

The exceptions written into the statute

Section 23612 contains several. A person who is unconscious or otherwise in a condition rendering them incapable of refusal is deemed not to have withdrawn consent and a test may be administered. A person afflicted with hemophilia is exempt from the blood test, and a person afflicted with a heart condition who is using an anticoagulant under the direction of a licensed physician is likewise exempt, with the urine test substituted in both cases. Where a person is lawfully arrested and transported to a medical facility, and the facility does not have the ability to perform one of the tests, the person has the choice only of the tests available there.

The commercial consequence, and the local hearing

For a commercial license holder a refusal is one of the offenses that carries a one-year disqualification from operating a commercial motor vehicle under section 15300, three years where hazardous material required to be placarded was being transported, and a lifetime disqualification under section 15302 for more than one qualifying violation (Vehicle Code 15300). Section 13353 adds that a person convicted of more than one refusal arising out of separate incidents is disqualified for life from operating a commercial vehicle. The hearing right is the same as in a test case: the DMV states that a request must be made within 10 days of receipt of the order and that hearings are held before a Driver Safety Hearing Officer remotely or in person (California DMV), with this area served by the office at 90 Great Oaks Blvd., Suite 104, in San Jose (California DMV). This page is general information about California law and is not legal advice. Anyone alleged to have refused a chemical test should speak with a licensed California attorney; the attorney advertising on this site can be reached at the number posted here.