Interviewer: Let’s get back to the license suspension issues and talk about some basics since we’re focusing on that. The first time DUI versus multiple offenses, how long would the suspensions be if you don’t prevail at the administrative hearing?
Steve: That’s a good question. Again, for a first time DUI, if you take the chemical test and you’re BAC, blood-alcohol concentration, is over 0.08 or 0.08 or more, it’s 120 days suspension. You are eligible for a limited license, restricted license to drive to and from work or to and from a rehabilitative program.
After the first 30 days, you serve the 120-day suspension. Essentially that’s for a first time DUI. If you refuse the chemical test, your license is suspended for a year with no ability for a limited license or restricted license.
Now, for a second offense, generally your license will be suspended for a year. Your third offense, generally, your license will be revoked as an inimical to public safety for a period of two or three years.
Now, there is new legislation that allows that time period to be shortened. The revocation can be shortened if you fulfill various reinstatement conditions and install an interlock ignition device. There are things that can be done to shorten that suspension in order to get a limited license to drive to and from work.
Can You Refuse the Preliminary Alcohol Screening Test?
Steve: To clarify, you mentioned the words chemical test, I know in California when you’re pulled over and suspected of DUI, they may give you a preliminary breath test versus a test on a Breathalyzer at the police station. When you talk about refusing a test, which one are you talking about, the roadside one or the police station one?
Interviewer: That’s a good question, that’s a very good question. In California you are not obligated, at all. Actually, you have the right to refuse the preliminary alcohol-screening test, which is also characterized as or known as the roadside breath test as you say. And, no, you do not lose your license for refusing that test.
In California, It Is Your Right to Refuse the Preliminary Screening Tests
It’s codified in the California implied consent statute, which is really an overlooked provision and people don’t realize that. The reason why people don’t realize that is because the officer’s don’t always, and in fact, I think it’s the general rule that they usually don’t inform the person, that they have the right to refuse the test.
In fact, I have another case I’ve been working on, and the hearing is next week at the DMV. In this case, a client of mine was actually arrested because they refused to take the preliminary alcohol-screening test. That’s illegal. You can’t arrest somebody because you refuse to take a preliminary alcohol-screening test. You have no obligation to undergo that test.
Once Arrested, You May Not Refuse Chemical Testing Without Incurring Penalties
California does, and it’s a condition of your license on the driving test, require that you as a driver imply the consent to a chemical test of your breath or your blood to determine alcohol content of your blood. If you are asked to do that by a police officer, you need to break that request down into some components.
It’s another subject as to what that really means. The term essentially is incidental to a lawful arrest; after you are arrested, you are required to submit to a chemical test. If you don’t, then, you can, first of all, lose your license for a year. Additionally, you will also be charged with an enhancement under the law when a complaint gets filed against you in court.
Interviewer: Again, those tests, the blood or the breath test that will result in license penalties if you refuse, will more than likely be the ones that happen at the police station, is that right?
Steve: It’s the only chemical test that’s an issue.
Interviewer: How about when people are pulled over and they’re asked to step out of the car and walk ten steps at a line or touch their fingers to their nose, the field sobriety test. Are those mandatory or can you refuse those too?
Steve: That’s another good question. You have an absolute right to refuse to do anything. People don’t really realize that. There are reasons for that. Again, that’s a subject for another conversation that we can have. The short answer is you are under no obligation to do anything, anything at all, other than submit to a chemical test if you’re lawfully arrested.
California Law: You May Not Contact an Attorney Once Arrested Before Undergoing a Chemical Test
People don’t realize that during these situations, people are scared and they don’t know what to do. In contrast to Minnesota, this showcases what California has done to erode individual rights in the state, which nobody realizes but it’s so important to understand.
In Minnesota, believe it or not, after you’re arrested and before you make a decision to submit to a chemical test, you have a right to call your lawyer. In California, you don’t. You don’t have that right. It’s absolutely absurd and shameful.
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