When an individual is convicted of Vehicle Code 23152 or 23153, and during the arrest, he/she willfully refused a chemical test or tests, pursuant to the implied consent laws of Vehicle Code 23162, the following punishments apply:
(1) No additional punishment when convicted for a 1st Offense DUI.
(2) 48 additional hours when convicted for a 1st Offense DUI with Injury when the sentence does not include State Prison. If the underlying sentence for DUI with Injury consists of State Prison, then no additional punishment is required.
(3) On a 2nd Offense DUI or DUI with Injury, 96 additional hours, unless the person is sent to prison for the underlying offense.
(4) On a 3rd Offense DUI, by an additional 10 days.
(5) On a 4th Offense DUI, by an additional 18 days.
In order to successfully prosecute an individual under this section it has to be shown that:
(1) A peace officer asked the defendant to submit to a chemical test in order to determine blood alcohol content or whether drugs had been consumed. (CALCRIM No. 2131)
- A police officer qualifies as a peace officer.
(2) The peace officer fully advised the defendant of the requirement to submit to a test and the consequence of not submitting to a test; (CALCRIM No. 2131)
(3) The defendant willfully refused to either submit or complete the test.
- Willfully is defined as follows: he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. (CALCRIM No. 2131)
(4) The peace officer performed a lawful arrest and had reasonable cause to believe defendant was driving a motor vehicle e in violation of Vehicle Code 23140, 23152, or 23153. (CALCRIM No. 2131)
- VC 23140 – Minor DUI
- VC 23152 – DUI
- VC 23153 – DUI with Injury.
Element (2) as shown above deals with whether the defendant was fully advised of the fact that the defendant is required to submit to a test and the consequences of such a refusal. In order to prove this element it has to be shown that the peace officer supplied the following information:
(a) He/she may complete a breath, blood or urine test.
- If the defendant completes a breath test, they can additionally be required to complete a blood or urine test to determine if drugs have been used.
- If only one chemical test is available, that is the one they must do.
- If the defendant is unable to complete the chosen test, they must submit to another test.
(b) You do not have the right to a lawyer present:
- Before stating which test to take;
- Before deciding which test to take;
- During the administration of the test
(c) If you refuse, it may be used against you in court.
(d) Failure to either submit or complete the test will result in a fine and mandatory imprisonment if later convicted of a DUI.
(e) Failure to either complete or submit to a chemical test will result in either:
- Suspension of your driver's license for one year; or
- Revocation of your driver's license for two or three years. (CALCRIM No. 2131)
i. “The officer must convey to the defendant that there is a storing likelihood that his or her license will be suspended.” CALCRIM No., 2131; Giomi v. Dept. of Motor Vehicles (1971) 15 Cal.App.3d 905, 907
ii. Telling the defendant that their license “could” be suspended is insufficient. Decker v. Dept. of Motor Vehicles (1972) 6 Cal.3d 903, 905-906; CALCRIM No. 2131
This information must be clearly conveyed.
i. The burden is on the officer to show it was given in a manner comprehensible to the driver. Decker v. Dept. of Motor Vehicles (1972) 6 Cal.3d 903
ii. When defendant's own conduct prevent the officer from completing the admonition; or
1. When the defendant was too intoxicated to understand the admonition;
2. It is not a defense and the defendant will be held responsible for the refusal. Morphew v. Dept. of Motor Vehicles (1982) 137 Cal.App. 3d 738, 743-744
iii. If the defendant is incapable of understanding due to an injury that is no fault of his/her owns, the defendant cannot be penalized for the refusal. Hughey v. Dept. of Motor Vehicles (1991) 253 Cal.App. 3d 752; CALCRIM No. 2131
As shown, to prove a Refusal enhancement is a tough hurdle for the prosecution. Generally in refusal situations the most serious consequences come from the DMV. Whether or not a valid refusal occurred will be decided at the DMV hearing as well, and the penalty is a one year license suspension from the DMV, with no eligibility for a restricted license. Therefore, the importance of a sound defense at the DMV hearing, and in court, cannot be overstated.
References & Resources:
Decker v. Dept. of Motor Vehicles (1972) 6 Cal.3d 903
Hughey v. Dept. of Motor Vehicles (1991) 253 Cal.App. 3d 752