DUI in CA - Chemical Refusal?

[j6605]

What is the name of your state?What is the name of your state? California

I was stopped for driving under the influance and after the sobriety test I was asked to take a breath test. I refused the breath and told the officer I wanted a blood test. They took me up to the county hospital and took my blood. I do not remember the officer having me sign any papers or teling me about the one year suspension. The next day after booking I noticed that the pink slip I had gotten instead of my license had "chemical test refusal" and "forced blood draw" checked. I had them take the blood voluntarily and was under the aussumption I had a right to take the blood test instead of the breath.

My main concern is the ONE year suspension on the license. Does this scenario sound like something they can suspend me for one year, or did they incorrectly call it a refusal?

[ENASNI]

Originally Posted by j6605

What is the name of your state?What is the name of your state? California

I was stopped for driving under the influance and after the sobriety test I was asked to take a breath test. I refused the breath and told the officer I wanted a blood test. They took me up to the county hospital and took my blood. I do not remember the officer having me sign any papers or teling me about the one year suspension. The next day after booking I noticed that the pink slip I had gotten instead of my license had "chemical test refusal" and "forced blood draw" checked. I had them take the blood voluntarily and was under the aussumption I had a right to take the blood test instead of the breath.

My main concern is the ONE year suspension on the license. Does this scenario sound like something they can suspend me for one year, or did they incorrectly call it a refusal?

It is very hard to answer that question. I was not there, and your rememberances are fuzzy as well. You may have had the best intentions of being cooperative at the county hospital, but mayhaps, you were not? You barely remember it.

[CdwJava]

Actually, Curt, in CA we have to provide the option of blood or breath IF both are available. We can NOT pick the one they use provided both are available at the time. (Sorry)

What likely happened here is that the OP either first wanted breath and then, after failing to blow or getting to the jail or department, decided he wanted blood and would NOT blow. Or, he simply refused and then changed his mind at the last minute thinking that was good enough. Without seeing the report it's hard to say what happened.

In any case, the refusal is a suspension unless he can successfully argue at his DMV hearing that he really did NOT refuse the test.

Now he has a suspension AND a DUI charge.

- Carl

[j6605]

Originally Posted by CdwJava

Actually, Curt, in CA we have to provide the option of blood or breath IF both are available. We can NOT pick the one they use provided both are available at the time. (Sorry)

What likely happened here is that the OP either first wanted breath and then, after failing to blow or getting to the jail or department, decided he wanted blood and would NOT blow. Or, he simply refused and then changed his mind at the last minute thinking that was good enough. Without seeing the report it's hard to say what happened.

In any case, the refusal is a suspension unless he can successfully argue at his DMV hearing that he really did NOT refuse the test.

Now he has a suspension AND a DUI charge.

- Carl

Thank you for a decent reply:

I would like to add that from the beginning of the ask, I never said I wanted the breath. From the beginning I told the officer I wanted blood instead of the breath. If I had a choice to pick, arent I in the right. They did have a breathalizer on site but not because of my request. I was consistent on requesting for blood, and I gave the blood voluntarily. The officer wrote it up otherwise. Please comment on whether I still am in the wrong.

[seniorjudge]

Originally Posted by j6605

Thank you for a decent reply:

I would like to add that from the beginning of the ask, I never said I wanted the breath. From the beginning I told the officer I wanted blood instead of the breath. If I had a choice to pick, arent I in the right. They did have a breathalizer on site but not because of my request. I was consistent on requesting for blood, and I gave the blood voluntarily. The officer wrote it up otherwise. Please comment on whether I still am in the wrong.

You would still be in the wrong if the officer testified that you did not want the blood test.

But answer Carl's suggestion: "What likely happened here is that the OP either first wanted breath and then, after failing to blow or getting to the jail or department, decided he wanted blood and would NOT blow. Or, he simply refused and then changed his mind at the last minute thinking that was good enough."

Also (per Carl) what are you going to say at the DMV hearing about your refusal? That is, what do you have to disprove that you refused?

[CdwJava]

Originally Posted by j6605

Thank you for a decent reply:

I would like to add that from the beginning of the ask, I never said I wanted the breath. From the beginning I told the officer I wanted blood instead of the breath. If I had a choice to pick, arent I in the right. They did have a breathalizer on site but not because of my request. I was consistent on requesting for blood, and I gave the blood voluntarily. The officer wrote it up otherwise. Please comment on whether I still am in the wrong.

You have 10 days from the issuance of the temporary license (the DS 367 Admin Per Se form) to schedule a hearing ont he matter. If you have failed to do so in that time frame, you may be out of luck in getting a hearing. You will then have to go through a much more complicated process to appeal the suspension decision.

For FAQ on this matter, go to the DMV website at [url]www.dmv.ca.gov[/url].

Additionally, it is possible that your recollection of events might be different than that of the officer's. Do you know what your BAC was?

And in any case, the issue of a refusal or not simply effects your license status as issued by the DMV. Winning would only mean that your license would not be suspended for the refusal - NOT that it wouldn't be suspended if you are fouind guilty of DUI.

- Carl

[j6605]

Originally Posted by CdwJava

You have 10 days from the issuance of the temporary license (the DS 367 Admin Per Se form) to schedule a hearing ont he matter. If you have failed to do so in that time frame, you may be out of luck in getting a hearing. You will then have to go through a much more complicated process to appeal the suspension decision.

For FAQ on this matter, go to the DMV website at [url]www.dmv.ca.gov[/url].

Additionally, it is possible that your recollection of events might be different than that of the officer's. Do you know what your BAC was?

And in any case, the issue of a refusal or not simply effects your license status as issued by the DMV. Winning would only mean that your license would not be suspended for the refusal - NOT that it wouldn't be suspended if you are fouind guilty of DUI.

- Carl

I am in the 7th day from the arrest. The attorney has filed the DMV hearing. Right now I do not know the bac results. I am mainly worried about the 1 year suspension, because of the affects to work and school.

In this situation do you or anyone know of any clever tactics attorneys use to disprove the officer to show it was not a refusal, even though he might say it was?

(I want to make it clear that the officer might have called it a refusal, but I never refused to take the whole chemical test, just the breath, in which I voluntarily submitted and wanted the blood. I also want to state that I am clear of the destinction from the DMV will not effect the DUI conviction.) Thank you...

[CdwJava]

It's going to be a matter of recollections. If the officer's story is different from yours, then it's going to be tough to argue that it was not a refusal. And if there were other officers that witnessed the alleged refusal, then it will make it even tougher.

When you got to the hospital, did you argue about giving the blood? Try and delay them? Complain in any way?

I'm just trying to figure out what might have given them the impression you refused. You might not know until your attorney gets the reports.

- Carl

[ENASNI]

Originally Posted by CdwJava

It's going to be a matter of recollections. If the officer's story is different from yours, then it's going to be tough to argue that it was not a refusal. And if there were other officers that witnessed the alleged refusal, then it will make it even tougher.

When you got to the hospital, did you argue about giving the blood? Try and delay them? Complain in any way?

I'm just trying to figure out what might have given them the impression you refused. You might not know until your attorney gets the reports.

- Carl

j6605, This was what my post was asking you, just in different words. Can you see now how it can be looked at?

[j6605]

Originally Posted by CdwJava

It's going to be a matter of recollections. If the officer's story is different from yours, then it's going to be tough to argue that it was not a refusal. And if there were other officers that witnessed the alleged refusal, then it will make it even tougher.

When you got to the hospital, did you argue about giving the blood? Try and delay them? Complain in any way?

I'm just trying to figure out what might have given them the impression you refused. You might not know until your attorney gets the reports.

- Carl

To answer the question. At the hospital I was completely cooperative. The nurse even asked me if I was going to give her the blood voluntarily and not fight it. I told her I was voluntarily giving her the blood...she then proceeded to draw. After that I was taken to booking. I have thought back, over and over, and I was never un-cooperative. I had the best intentions of giving them what they wanted. I guess it is up to the reports. I hope the attorney can use them in a way to show that there was no refusal.

[CdwJava]

Well, when you get to the hearing you will find out why the officer said what he did. And if not at the hearing, then at court.

- Carl

[j6605]

Originally Posted by CdwJava

Well, when you get to the hearing you will find out why the officer said what he did. And if not at the hearing, then at court.

- Carl

Sorry not to hound you... Is it recommended that I go to the hearing? That I go to court?

[CdwJava]

Originally Posted by j6605

Sorry not to hound you... Is it recommended that I go to the hearing? That I go to court?

Those are decisions for you and your attorney to make. I have no real idea of the case against you, so I couldn't say.

If you don't go to the hearing you will likely lose your license. If you don't go to court, you will have to accept a plea deal or plead guilty or no contest.

- Carl