If someone refuses to take a chemical test after being lawfully arrested, then we have a few different things to be concerned about. We have to deal with what happens in court if there’s been a refusal. We also have to deal with what happens at the Department of Motor Vehicles if there’s an alleged refusal.
At an Administrative Hearing, the Department of Motor Vehicles Will Suspend the Driver’s License for a Refusal
The Department of Motor Vehicles case usually moves faster than the court case, and there’s less room if any at all for negotiation. We need to show that there was not a refusal or the DMV will suspend the license.
DMV Must Prove 4 Elements to Suspend a Driver’s License
On a first time DUI in Los Angeles, if a person is found to refuse the chemical test when they’re arrested, at the DMV, they will try to suspend the license for one year. That’s a hard suspension: no driving at all, no restricted license on a first time refusal.
There are four issues at the DMV hearing that need to be dealt with. The DMV needs to be able to prove that the person was stopped based on reasonable suspicion and that the officer had reasonable suspicion to believe that the person was driving under the influence.
They need to prove that the person was lawfully arrested. They need to prove that the person was advised of what would happen if they refused or were unable to complete a chemical test and that the person, in fact, did refuse the chemical test.
If the DMV is not able to prove any of the four elements, the reasonable suspicion, the DUI suspicion, lawful arrest advisement and refusal, then the DMV should not take any action against the license. You would be able to continue to drive. So when the DMV proves the four elements, you’re looking at a one year hard suspension on a first offense.
During the Court Case, a Higher Standard Has To Be Proven for the Party to Be Found Guilty but the Penalty for a Refusal Conviction Is Mandatory Jail Time
On the court case, there are possible penalties, but it’s a higher standard beyond a reasonable doubt that needs to be proven. They also need to prove the lawful arrest but in court, if you are convicted, you either plead guilty or are found guilty of a DUI and the refusal is found to be true, then there’s mandatory jail time as well as classes, probation and other fines and fees that go along with it. Even on a first time DUI, if you are found guilty of the DUI and the refusal is found to be true, there is mandatory jail time.
On a first time DUI, the minimum time to be served is 48 hours in jail on a refusal.
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