The Right of Refusal in California DUI Cases

If you’re arrested for driving under the influence, and you’re asked to submit to a breath or blood test, remember that you still have a third choice.

You can refuse to submit to such testing and face the consequences. What are those?

• You may lose your license for one-to-three years depending on your driving history;
• You’ll have to pay a fine;
• You’ll serve mandatory jail time if you’re convicted; and
• Your refusal can be used against you at trial as evidence of your guilt.

You may not like your options, but you’ve still got a right to refuse, and if a police officer wants to deprive you of that right, he or she must get a warrant.

Take this recent case, for example. A woman was stopped on suspicion of driving under the influence. The police officer asked her to blow into a breathalyzer, saying it was optional (which is true). She declined. He then arrested her and asked her to choose between a breath and blood test. He told her that she was required to choose one or the other, but he didn’t explain the consequences of refusing like he was supposed to. That made it seem like she couldn’t refuse (which isn’t true). So she chose the blood test. After she got charged, she moved to suppress the results on the ground that her consent wasn’t free and voluntary because the officer made it seem like she couldn’t refuse. But the trial court denied it.

On appeal, the court ruled that the trial court should have suppressed the test results. Because the officer didn’t have a warrant, the search and seizure was illegal unless it was based on an exception to the warrant requirement (like consent). In this case, however, the woman’s consent wasn’t free and voluntary because the officer didn’t correctly explain the law. He told her that she had to take a test under California’s implied-consent law (which is true). But he didn’t advise her of the consequences for refusing. That made it seem like she couldn’t say no, which meant there was no actual consent.

As the court explained, it’s no different than if the police came to your home and claimed to have a warrant but then argued that you consented to their search by opening your door. That’s not a valid consent because you had no right to resist their authority, anyway. So if it turns out they didn’t actually have a warrant then their whole search would be illegal, and they couldn’t rescue their case by relying on your consent.