When a chemical test request turns into a refusal case
A California DUI test refusal happens when a driver under lawful DUI arrest refuses the chemical test an officer requests. Failing to complete the test counts too. As a result, the claim opens its own license case at the DMV. It can also change the criminal case, since a court may add penalties for refusing a breath or urine test.
Most of the rules come from Vehicle Code section 23612, the implied consent law. Under subdivision (a)(1)(A), a driver “is deemed to have given his or her consent to chemical testing” of blood or breath for alcohol. That consent applies after a lawful arrest under section 23140, 23152 or 23153.
Implied consent starts after a lawful arrest
The chemical test duty is tied to an arrest. Section 23612(a)(1)(C) says the testing “shall be incidental to a lawful arrest.” An officer with reasonable cause to believe the person drove in violation of the DUI statutes directs the test.
For an alcohol arrest, the person may choose blood or breath. Also, the officer must explain that choice. If the person cannot complete the chosen test, or says so, the person must take the other one. In addition, a person with hemophilia is exempt from the blood test but must complete a urine test. The same rule covers a person with a heart condition who takes an anticoagulant under a doctor’s direction.
Warnings the officer must give
Section 23612(a)(1)(D) lists the warning. First, refusing the required breath or urine test “will result in a fine and mandatory imprisonment” if the person is convicted of DUI. Second, refusing the breath, blood or urine test leads to a one year DMV suspension. With qualifying priors, it leads to a two or three year revocation instead.
Subdivision (a)(4) adds two more points. The person has no right to a lawyer before deciding, before choosing a test or during the test. Also, a refusal “may be used against him or her in a court of law.”
The roadside screening device is different. Section 23612(h) treats a preliminary alcohol screening (PAS) breath test as a field sobriety test. Under subdivision (i), the officer must tell the driver about the right to refuse it. Even so, taking the PAS does not satisfy the later chemical test duty. For more detail, see PAS versus breath test and California field sobriety tests.
What counts as a California DUI test refusal
The statute uses two phrases. For example, a person may refuse the test or fail to complete it. Courts read those words broadly. The Judicial Council’s bench notes to CALCRIM No. 2130 collect the published decisions:
- Silence after repeated requests can be a refusal (Lampman v. Dept. of Motor Vehicles (1972) 28 Cal.App.3d 922).
- Agreeing to test only with a lawyer present can count as a refusal (Covington v. Dept. of Motor Vehicles (1980) 102 Cal.App.3d 54).
- A person who cannot finish the chosen test and then declines the other one has refused (Cahall v. Dept. of Motor Vehicles (1971) 16 Cal.App.3d 491).
- After a refusal, the officer need not offer the test again when the person changes course (Dunlap v. Dept. of Motor Vehicles (1984) 156 Cal.App.3d 279).
There are limits, though. The same notes cite Ross v. Dept. of Motor Vehicles (1990) 219 Cal.App.3d 398. In that case, the driver asked to see the identification of the person drawing his blood. The court held he could not be penalized after the technician declined to show it. Each case turns on the exact words, the timing and the warning.
DMV periods for a California DUI test refusal
Vehicle Code section 13353 sets the license action. The DMV acts after it receives the officer’s sworn statement. The period depends on the record in the 10 years before the refusal:
- One year suspension with no qualifying prior
- Two year revocation with one qualifying prior
- Three year revocation with two or more qualifying priors
Qualifying priors include DUI convictions under sections 23140, 23152 and 23153. They also include a wet reckless under section 23103.5 and vehicular manslaughter under Penal Code section 191.5 or 192.5(a). A prior DMV suspension or revocation under section 13353 or 13353.2 counts as well. Under section 13353(a)(3)(D), a matching conviction from another state or Canada also counts.
The DMV’s DUI page lists the same periods for drivers 21 or older. By comparison, it lists a four month suspension for a first offender who tested at 0.08 percent or more. The article on California APS suspension covers that path.
When the suspension takes effect
The officer usually serves the notice at the arrest and takes the California license. Under section 23612(f), the temporary license on that notice lasts 30 days from the arrest. See DUI temporary license for how that permit works.
If the same arrest also leads to a DUI conviction, section 13353(f) applies. The refusal action then runs concurrently with the conviction based suspension or restriction from that arrest. In other words, the periods overlap rather than stack.
Drivers under 21 and drivers on DUI probation
Meanwhile, two groups face refusal rules that start before any arrest. Under Vehicle Code section 23136(c), a driver under 21 consents to a PAS or other chemical test once lawfully detained. Refusing that test brings the one, two or three year action in section 13353.1. See California underage DUI for the zero tolerance law.
Drivers on DUI probation fall under section 13389. If an officer lawfully detains such a driver and suspects 0.01 percent or more, the officer must request a PAS when one is available. Because of that rule, a refusal leads to an immediate notice of suspension. The DMV page lists a two year suspension for that refusal. With two or more prior DUI convictions, it lists a three year revocation. See DUI probation violation for the court side.
Commercial license holders
Section 13353(b) adds a rule for commercial drivers. Two or more refusals in separate incidents bring a lifetime disqualification from driving a commercial motor vehicle. The article on California CDL DUI explains other commercial license effects.
The four issues at a refusal hearing
For that reason, the DMV hearing on a refusal is narrow. Under section 13557(b)(1), the DMV sustains the action only if a preponderance of the evidence shows all four facts:
- The officer had reasonable cause to believe the person drove in violation of the DUI statutes
- The officer arrested the person, or lawfully detained a driver in an underage case
- After the officer’s request, the person refused or failed to complete the test
- Unless the person could not refuse, the officer warned that a refusal would bring a suspension or revocation
If any fact is not proven, section 13557(b)(2) requires the DMV to set the order aside. On the other hand, section 13558(c)(1) says the refusal period “shall not be reduced” at the hearing. To get a hearing before the action takes effect, the person must ask within 10 days of receiving the notice. For details, see DMV DUI hearing deadline and DMV DUI hearing process.
The DMV result does not decide the criminal case. Under section 13558(g), the same facts can be argued again in court.
California DUI test refusal in criminal court
These statutes do not make a refusal a separate crime. Instead, a refusal can raise the penalty after a DUI conviction. Vehicle Code section 23577 applies when the person “willfully refused” the breath or urine test. Subdivision (b) requires the prosecution to plead and prove that willful refusal.
When it applies, the statute adds these terms:
- First violation of section 23152: probation must include the section 23538(a)(1) terms, a $390 to $1,000 fine and 48 hours to six months in jail
- First violation of section 23153: 48 continuous hours in county jail
- Second violation of section 23152 or 23153: 96 hours in county jail
- Third violation of section 23152: 10 days in county jail
- Fourth or later violation of section 23152: 18 days in county jail
Next, section 23578 treats a breath or urine refusal as a special factor. The court may use it to enhance penalties, deny probation or add probation terms. In addition, the DUI program can run longer. Under section 23538(b)(2), a first offender who refused a chemical test goes to a program of at least nine months and 60 hours. See California DUI school requirements for program lengths.
Blood test refusals follow a different court rule
The court enhancements name breath and urine tests only. Section 23577(c) says its penalties “do not apply to a person who refused to submit to or complete a blood test.” Similarly, section 23578 refers only to a breath or urine test. The warning in section 23612(a)(1)(D) follows the same line.
So a blood refusal can still bring the DMV action. However, these two sentencing statutes add no jail time for it. Officers may also seek a warrant for blood, as covered in DUI blood draw warrant.
A refusal as evidence at trial
The prosecution may offer a refusal as evidence. The pattern jury instruction, CALCRIM No. 2130, tells jurors that a refusal may show the defendant was aware of guilt. Even so, the jury decides what the refusal means. The instruction also says “evidence that the defendant refused to submit to a chemical test cannot prove guilt by itself.”
According to the bench notes, a refusal can stay admissible in court even after a faulty warning. That faulty warning may still block the license suspension and the willful refusal enhancement.
Records worth keeping after the arrest
Refusal cases often turn on exact words and timing, for instance what was said at the station. So write down what happened the same day and keep it with the arrest papers:
- The notice of suspension or revocation and the temporary license
- What the officer said about the test choice and the consequences
- What the person said back, including any questions or conditions
- Any medical issue that made a test hard to complete
Body camera and station video can confirm or contradict the report, as explained in DUI camera evidence.
An invented refusal example
Consider a situation invented for illustration only. A 34 year old Sacramento driver with no prior DUI record is arrested after a late night stop. At the station, the officer explains the test choice and the license warning. The driver says he will blow only after speaking with a lawyer. Then he stays silent when asked again. As a result, the officer records a California DUI test refusal and serves the notice. The example shows how a condition and silence can become a refusal claim. It says nothing about how any real case would end.
Frequently asked questions about California DUI test refusal
Can a driver change his or her mind after refusing?
Usually not. Dunlap v. Dept. of Motor Vehicles described the rule as one offer plus one rejection equals one refusal. Still, whether a quick change of mind was part of the same exchange is a fact question.
Does refusing the roadside PAS count as a chemical test refusal?
For most adult drivers, no. Section 23612(i) requires the officer to explain the right to refuse the PAS. However, drivers under 21 and drivers on DUI probation face license consequences for refusing it.
If the DUI charge is dismissed, does the refusal suspension end?
Not automatically. The DMV page says it will reverse a suspension after an acquittal if it finds the court decision equals an acquittal. By contrast, a reduction to reckless driving does not affect the DMV action.
What does it cost to get the license back after the period ends?
The DMV page lists a $125 reissue fee plus proof of insurance or other financial responsibility. For restricted license and ignition interlock options, see California DUI restricted license.
The information here is general information about California DUI law, not legal advice. Laws change, and each situation depends on its own facts.