What is a chemical test?

In California, when you are stopped and arrested for a DUI, you are required to do what is called a “chemical” test. A chemical test is either a 1. Blood, 2. Breath or 3. Urine test. These three tests are used to determine what your Blood Alcohol level is at the time you were driving.

When must you take a chemical test?

One of the tree tests above must be done by you, once you are place under arrest for a DUI. This is different than the voluntary Breath or PAS test you are asked to do before your arrest. Generally, an officer will ask if you will take a breath test, and advise you that you can say “no” to that request. This can only occur before you are arrested. If you do reject the voluntary test, and Police determine there is sufficient evidence to arrest you for a DUI charge, based on the totality of the circumstances, then you would be now place under arrest for a DUI. At that point, you would now be required to submit to one of the above three tests. If you take a PAS test, that will not count as chemical test, once you are arrested. If blood or a breath test is not available, then you must submit to a urine test.

Why do I have to take a chemical test? If I don’t, wont it make it impossible to prove that I am driving under the influence of alcohol?

Under VC 23612(a)(1)(A), it states that:

“A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.”

What the above means, is that for you to be allowed to have a Driver’s License and drive in California, you automatically give “Implied Consent” to subject yourself to one of those three chemical tests. So, even if you are not aware of this, by driving as a licensed driver in California, you already have consented to a chemical test if you are lawfully arrested for a DUI. This would also mean, if you are therefore not lawfully arrested for a DUI, then you are not subjected to those three tests, and a refusal would be dropped. An example of this would be, you are pulled over and have been drinking, police then place you under arrest and ask which test you would like to take. You stated you will not take a test, and that you do not “consent” to any test. This would not act as a defense for you, as already stated above, your consent was already implied from your driving in California.

And if you do refuse a test, as will be explained below, police can still ultimately lawfully obtain a warrant to obtain your blood for testing purposes.

What happens if I refuse to take a chemical test?

Failing to submit to a chemical test, after you are lawfully arrested can bring up some hefty penalties, not only in your criminal case, but also with the DMV. Also worth noting, is failing to take or complete a test, will also be considered a refusal under this section. For example, if you opt to take the breath test, but refuse to follow the instructions how, do not blow hard enough, or for a long enough period, Police can deem that a refusal, and you would be subjected to the below, additional penalties. If you refuse a chemical test, the following can apply to you:

1. You can be subjected to an additional two days in County Jail;
2. You face an automatic one year license suspension from the DMV;
3. You cannot obtain a Restricted License, and any driving can subject you to a new crime during that suspension year;
4. If this is your second refusal within ten years, then you will lose your license for two years;
5. If this is your third refusal within ten years, then you will lose your license for three years;
6. You do not have a right to an attorney before taking your chemical test, so you cannot pause the test, call a lawyer, before continuing – this counts as a refusal;
7. The refusal may be used against you in your pending criminal case.

The above must be explained to you prior to testing. If the officer fails to comport with this section under VC 23612(a)(1)(d), then this can act as defense to your refusal to complete the tests.

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Understanding your legal obligations and rights when arrested for a DUI is essential, as the implications extend far beyond the criminal court — particularly regarding your driving privileges. One of the critical aspects after a DUI arrest is addressing the potential suspension of your license by the Department of Motor Vehicles (DMV). Without timely and knowledgeable action, you might face a year-long suspension with no option for a restricted license, profoundly affecting your daily life.

An experienced DUI and DMV attorney can make a significant difference in these situations. Not only can they help navigate the criminal aspects of your DUI case, but they also understand the DMV’s administrative procedures and can represent you in DMV hearings. Successfully contesting a license suspension or obtaining a restricted license requires a strategic and informed approach, often involving challenging the DUI arrest or the circumstances of your refusal to undergo chemical testing.

At Inland Empire Defense, we specialize in DUI defense, including the DMV administrative processes that accompany these charges. We are committed to providing the robust representation needed to protect your driving privileges and fight for the best possible outcome in your case.

If you’ve been arrested for a DUI and are concerned about the status of your license or facing a DMV hearing, don’t hesitate to seek professional legal assistance. Contact your local Ontario Criminal Defense Attorney at Inland Empire Defense by calling 909-939-7126. Located in Ontario, we are here to offer expert guidance and support, helping you navigate through this challenging situation and strive for a favorable resolution.

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