Refusal of Breath test after DUI arrest
Question: I refused the breath and blood tests after I was arrested for a DUI in Van Nuys. Can I only be charged under Vehicle Code 23152(a) and not (b)? That one carries smaller penalties, right?
Answer: Generally for refusals, they only charge the 23152(a) charge. The potential penalties for both 23152(a) and 23152(b) are the same. Additionally, there are what is called “enhancement” penalties if the refusal charge sticks (ie. Refusal charges carry their own penalties above the normal 23152(a) and (b) charges).
One of the big issues with a Refusal that makes things difficult is the additional license suspension that accompanies a conviction of a DUI with the Refusal enhancement. For example, a misdemeanor first offense DUI generally comes with a 6 month license suspension. In those situations, a licensee is able to get a restricted Class C drivers license after 30 days.
Distinguishably, if convicted of the refusal enhancement on top of a first offense DUI in Los Angeles, there is a one year driver license suspension without the option of getting a restricted license during that time frame. If it is a 2nd DUI with refusal, a 2 year license suspension with no restricted license option. If a 3rd DUI with refusal, a 3 year suspension or revokation of your drivers license.
Additionally, even if the refusal enhancement is stricken in Court, you still need to be concerned with the DMV hearing. If you lose your DMV Admin Per Se hearing, or fail to request one in time, then you would also suffer a long driver license suspension without the option of a restricted driver’s license
Just as there are defenses to DUI charges, there are also defenses to Refusal enhancments. I have been successful in getting refusal enhancements stricken in court and getting dismissed at DMV Admin Per Se hearings.
I would recommend hiring a DUI lawyer. Call me at (818) 336-1384 if you would like a free consultation to discuss your case in further detail.
Sincerely, Philip Hache, DUI Defense Attorney