Three recent wins on refusals at DMV!
Defense attorneys know that defending against a refusal allegation at DMV is incredibly challenging.
If you are lawfully arrested in California for suspicion of driving under the influence of alcohol, you are required to submit to a blood or breath test. If you refuse to take a test, your right to drive will be suspended for a year, or longer. (See California Vehicle Code Section 23612)
You will not be eligible for a restricted license. You are facing at least twelve months of not being able to legally operate a motor vehicle. Also, in most circumstances, the police will get a warrant and take a blood sample from you anyway.
The DMV is notoriously harsh on drivers accused of refusing a breath or blood test. If you were lawfully arrested for DUI, the officer told you would lose your license for at least a year if you refused to take a test, the officer asked you to take a test, and your answer was anything other than an immediate “Yes,” the DMV is going to rule against.
And a DMV hearing does not require proof beyond a reasonable doubt. DMV hearings on conducted on a preponderance of evidence (or “more likely than not”) standard.
Nevertheless, we were able prevail on refusal allegations for three of our clients.
In People v. TLG, our client was in a serious roll over accident and suffered serious injuries to his head. The police officer removed him from the back of an ambulance where he was being treated, arrested him, and put him in the patrol car. The police took him to the hospital, where they insisted that he take a blood or breath test. He did not comply with their demand. They got a warrant, and a phlebotomist drew a sample of his blood.
At the DMV hearing, we successfully argued that, due to his head wound, the driver was unable to understand what the police were requesting. The DMV found in our client's favor and did not suspend his license.
In People v. JDW, our client was also in a serious rollover accident. He was airlifted to a hospital in another county. There, the police asked him to take a blood test. His response was, “I don't know where I am.” The police did not try to get a warrant, so no blood sample was taken.
At the DMV hearing, we presented evidence that he had suffered a concussion and that he had been given a powerful painkiller at the hospital. As a result, he literally didn't know where he was. He had no memory of ever being asked to take a blood test. He was, for all practical purposes, unconscious when the police asked him to take a test.
The DMV agreed and ruled in his favor. He avoided a two-year loss of his driving privileges.
In People v. GM, our client was stopped by the police for failing to come to a complete stop at stop sign. According to the police, when they asked him to step out of the car, he refused. The police forcibly pulled him out of the car and arrested him. They eventually decided that he was under the influence of alcohol. They insisted that he take a breath or blood test and he refused. When the police tried to get a warrant to take his blood, the judge would not give them one. The police charged him with resisting a police officer, driving under the influence of alcohol, and refusing to submit to a blood or breath test.
At the DMV hearing, we argued that he had been arrested for resisting a police officer. It was only later that the police decided to charge with driving under the influence. Since he wasn't arrested for DUI, he was not required to submit to a test. The DMV hearing officer agreed and ruled in his favor.
At court, the DUI charge was dismissed, and he pled to resisting a police officer. He was placed on informal probation for one year. His license was not suspended.
If you are charged with refusing to submit to a blood or breath test, you face losing your right to drive for at least one year. Hiring the right lawyer can make all the difference. Call us today for a free consultation.
