Increased Punishment for Refusing to Take a Chemical Test

If someone accused of drunk-driving or DUI / DWI refuses to take a chemical test, there are several possible consequences. The refusal may be charged as a separate offense. The refusal can also be used to suspend or revoke the individual's driving privileges in a separate DMV action. And although a refusal means there is no evidence of a driver’s blood alcohol content to introduce at trial, the fact that the person refused a chemical test can be offered against them to show "consciousness of guilt." Anyone who has refused a chemical test in a DUI / DWI case should consult with a California drunk-driving attorney who specializes in defending drunk-driving offenders.

The most immediate consequences of refusing to take a chemical test in a DUI / DWI case likely will take place at the California Department of Motor Vehicles. For a first offense with refusal, the driver’s license will be suspended for one year, with no chance of receiving a restricted license to drive to work.

The penalties can be even stiffer for multiple offenses. Although the DMV will suspend the driver’s license of an individual charged with DUI / DWI even if the driver submits to a chemical test, the suspensions are longer for those who refuse. For a second offense within 10 years of a prior offense, there is a two-year driver's license revocation. For a third offense within 10 years, a license will be suspended for three years. For a fourth offense within 10 years, the punishment is the same, whether or not the driver refused a chemical test – a four-year revocation of the repeat offender's driver’s license.

The court can also punish a person for refusing to submit to a chemical test. In order to do so, the charge must specifically be listed in the complaint filed against the individual. If a person arrested for DUI / DWI is not specifically charged with a refusal, the court cannot increase the punishment based on that refusal. The refusal charge must also be proven. Further, the individual charged must first be found guilty of the underlying offense of drunk-driving in order to be found guilty of refusal.

If an individual is found guilty of DUI / DWI and refusal to submit to a chemical test, there are mandatory punishments by the court which, depending on the number of prior offenses, includes a certain amount of jail time and a longer alcohol program. This jail time is in addition to any other term imposed by the court. If it is a first offense, the jail time is 48 hours. If it is the second offense, a refusal means 96 hours of jail. On a third offense with refusal, the penalty is 10 days in jail. For a fourth offense, the jail time is 18 days.

Ultimately, it is to the driver’s benefit to submit to a chemical test when arrested for drunk-driving or driving under the influence of drugs, but that’s not always what happens. A lawyer who is well-versed in the consequences of chemical test refusal may be able to ease sanctions against drivers who refuse the test.