I was pulled over and asked to step out and take some field sobriety tests. I did good on the FST, so next the officer asked me to take a Pas breathalyzer test. I told him I prefer to take a blood test. I was taken to the station and told I need to take a breathalyzer test because a blood test was not available. I refused and told them I will only take a blood test. They were unable to get a phlebotomist there to take a blood sample and I was released a few hours later with a notice to appear ticket vc 23152(a) DUI and a 30 day temporary license for the refusal. I contacted the dmv to schedule a hearing to contest the license suspension.
Troy SlatenCriminal Defense AttorneyBeverly Hills, CA ·
Based on the few facts that you present, it seems likely the DMV (and possibly the DA) will proceed as a refusal. You owe it to yourself to get the best attorney you can ASAP!! The stakes are high.
Most of us here on , including me, that concentrate on DUI will give you a fee consultation. Start calling now
Unfortunately they can charge you with a DUI without a chemical test in this situation. It is a good thing you have already contacted the DMV as they are going to try and suspend you license for a year. On the court side they will start with a jail offer. Which court in San Bernardino is your case out of?
Matthew MurilloEstate Planning AttorneyRedlands, CA ·
Yes, you can still be charged with a DUI in court. But more importantly, the dmv is will not only be after this as a DUI. They will be looking at this as a "refusal" hearing. Which means they don't care whether or not they have a BAC level, because in their eyes, you refused to take a chemical test. As a result, you are looking at a 1 year suspension of your license, without the ability to get a restricted license.
You should seriously consider hiring someone, at least for the dmv hearing. You only get one good shot at it.
Absolutely. Just today I lost a trial after I got the blood test result excluded from evidence. There was (in the jury's view) enough of a showing of alcohol impairment even without the test result. Very strange that they would not take you somewhere for the blood draw ... that is a good fact! You have a good issue so get a lawyer or use the public defender. If you can, hire someone to represent you at your DMV hearing. The legal issues implicated in your scenario are too complex for a lay person to deal with effectively.
Yes, they can charge you. You can expect a 23152(a) with a refusal allegation.
There will be some debate as to whether your insistence on a blood, as opposed to a breath, test constitutes a refusal. By law, you have a choice, but if the state proves that a blood test was not available.... (This is still a pretty grey area - you have a "statutory right" to a choice, but when no choice is available what is the remedy?)
As Mr. Murillo pointed out - the DMV is going to come for your license based upon a refusal of the chemical test.
If you're under 21, your refusal to take a PAS test is going to result in a "hard" one year license suspension from the DMV. IF you're over 21 - then you have a statutory right to refuse the PAS, and it cannot be used against you in court.
Your almost certainly going to need the assistance of a qualified attorney to beat the refusal allegations with the DMV and the criminal matter. I suggest you start availing yourself of the free consultations many of us here on offer. You want to find an attorney you like, trust and can work with. The refusal issues alone are going to require some good legal arguments and evidentiary foundation.
Good luck.
