Intro to DMV DUI “Refusals”

California DUI lawyers in San Diego understand how difficult refusal cases are.  The DMV administrative hearing is one of the most challenging actions for attorneys to defend.  Here’s an introduction to the DMV Manual.

12.120 FULL ADMONITION -REFUSALS
12.121 Introduction

The third issue in a refusal hearing is the admonition or warning. Was the driver advised of the other test rights, obligations, and consequences of refusal? .Was the driver warned that their driving privilege would be suspended for a year, or revoked for two or three years, if they refused to take, or failed to complete, a chemical test to determine the alcohol or drug content of their blood?

12.122 Chemical Test Admonition

Section §23612 VC specifies the information the officer must tell the arrested driver. The Chemical Test Admonition is printed on the reverse of the DS 367 so the officer can read it to the driver. “You are required by state law to submit to a chemical test to determine the alcohol content of your blood.”

1. You are required by state law to submit to a PAS (DUI Probation) or other chemical test to determine the alcohol and/or drug content of your blood.
2. a. Because I believe you are under the influence of alcohol, you have a choice of taking a breath or blood test.
b. Because I believe you are under the influence of alcohol and drugs, you have a choice of taking a breath, blood, or urine test.
c. WHEN APPLICABLE: Since the breath and blood tests are unavailable, you are deemed to have given your consent to chemical testing of your urine.
d. WHEN APPLICABLE: Since you need medical treatment, your choice is limited to _____________test(s), the only test(s) available at ____________.
3. If you refuse to submit to, or fail to complete a test, your driving privilege will be suspended for one year or revoked for two or three years. A second offense within ten years of a separate violation of driving under the influence, including such a charge reduced to reckless driving, or vehicular manslaughter, or a violation of §23140 VC, which resulted in a conviction, or separate administrative determination that you were driving with a BAC of 0.01% or more while under age 21, or a separate administrative determination that you were driving with a BAC of 0.01% or more while on OUT probation, or a BAC of 0.04% while operating a commercial motor vehicle, or a BAC of 0.08% or more at any age, or you refused a test, will result in a two-year revocation. Three or more offenses within ten years of any combination of the above violations, convictions or separate administrative determinations will result in a three-year revocation.
4. Refusal or failure to complete a test may be used against you in court. Refusal or failure to complete a test will also result in a fine and imprisonment if this arrest results in a conviction of driving under the influence.
5. You do not have the right to talk to an attorney or have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the test.
6. If you cannot, or state you cannot, complete the test you choose, you must submit to and complete a remaining test.

12.123 Drug Admonition

If the driver takes a breath test and the officer has reasonable cause to believe the driver is under the influence of a drug, or a drug and alcohol, the driver must also take a blood or urine test. The officer must again advise the driver of the test rights, obligations, and consequences of refusal. The drug admonition states:

1. The breath test you have just taken is designed to detect only the alcohol content of your blood.

2. Because I believe you are under the influence of drugs or a combination of drugs and alcohol, you are required by state law to submit to a blood or urine test to determine the drug content of your blood.

3. If you refuse to submit to, or fail to complete a test, your driving privilege will be suspended for one year or revoked for two or three years. A second offense within ten years of a separate violation of driving under the influence, including such a charge reduced to reckless driving, or vehicular manslaughter, or a violation of Section §23140 CVC, which resulted in a conviction, or separate administrative determination that you were driving with a BAC of 0.0 1% while under age 21, or a separate administrative determination that you were driving with a BAC of 0.0 1% or more while on DUI probation, or a BAC of 0.04% while operating a commercial motor vehicle, or a BAC of 0.08% or more at any age, or you refused a test, will result in a two-year revocation. Three or more offenses within ten years of any combination of the above violations, convictions or separate administrative determinations will result in a three-year revocation.

4. Refusal or failure to complete a test may be used against you in court. Refusal or failure to complete a test will also result in a fine and imprisonment if this arrest results in a conviction of driving under the influence.

5. You do not have the right to talk to an attorney or have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the test.

6. If you cannot, or state you cannot, complete the test you choose, you must submit to and complete a remaining test.

12.124 DUI Drug Refusal

The refusal portion of the APS law requires a blood or urine test when the officer has reasonable cause to believe a drug or drug and alcohol are involved. The officer must first complete the Chemical Test Refusal admonition for alcohol on the back of the DS 367 before proceeding to the Drug Admonition Supplement; thus, ruling out alcohol. If the officer failed to complete the Chemical Test Refusal Admonition, review any additional documents (e.g., Arrest Report) to confirm the officer suspected alcohol. The symptoms of intoxication from alcohol and drugs may be similar, yet have distinct differences. In a refusal case, the record must reflect why the officer believed the driver was under the influence of alcohol and/or drugs.

12.125 The Least The Driver Must Be Told

When the officer did not read the admonition to the driver word for word from the DS 367, be sure the following points were covered:
1. The chemical test was required.
2. Available tests were offered.
3. Refusal to take, or failure to complete, a test will result in:
• a one year suspension. OR
• a two year revocation, with a prior DUI conviction or administrative determination of a refusal or driving with an excessive BAC within the previous ten years. OR
• a three year revocation, with two or more prior DUI convictions, including such a charge reduced to reckless driving, vehicular manslaughter, or a violation of §23140 VC, or administrative determinations of refusal or driving with an excessive BAC within the previous ten years.

If the driver is able to establish that the warning did not include these points, the action is set aside or reduced. For example, when not warned of one year, but only of six months, per Daly v DMV, 1986 187 Cal.App. 3d 257, reduce the suspension to six months.

12.126 The Admonition Must Be Clearly Heard

The officer may admonish the driver at the arrest site, in the police car, at the jail or hospital, or at a sobriety testing center. Any of these places may be quite noisy. Drivers often use “noise” to argue they were unable to hear the warning.

For example, in Thompson v. DMV, 1980 107 Cal.App.3d 354 the driver did not hear an essential part of the admonition because of interference from the police car radio. Both the officer and the driver were aware of the interference. The officer did not determine if the driver heard and understood all of the admonition. The court excused the refusal. When noise is an issue, subpoena the officer. Question both the officer and driver carefully to determine:

• Did the driver hear any of the warning?
• Did the driver have any prior knowledge of the warning?
• Did the driver hear enough of the warning?
• Did the driver tell the officer they did not hear it at all? If not, why not?
• What reply did the driver make after the warning, or to the officer’s offer of any tests?
• What reply did the driver make to other questions the officer may have asked?
• Why did the officer believe the driver understood the warning?

The hearing officer would need to determine a driver, through no fault of his or her own, was unable to hear the warning, or an essential part of the warning. This would require a set aside of the suspension or revocation.

12.127 Admonition Read From Old DS 367 Or Another Form

When the department revises the DS 367, the changes can affect the admonition. The department may advise law enforcement agencies to destroy old forms; however, occasionally an officer uses an old form. Other officers may use an approved agency form to admonish the driver. If this issue is raised by the respondent, it is very important to determine exactly which form or admonition card the officer read and whether it was current. Read the admonition into the record just as the officer had read it to the driver. For example, the department is mandated to impose a three-year revocation, but it is determined that the driver was only advised of a one year suspension. In that case, the department would be required to reduce the sanction to one year.

12.128 Admonition Was Not Read

Sometimes the officer will recite the admonition from memory. If it becomes apparent it was not read, subpoena the officer. If the officer recited the admonition to the driver from memory, and can do so at the hearing, you will have no problem deciding what information the officer gave the driver. When the officer “informally” tells the driver about the tests and consequences of refusal, this may create a problem at the hearing. Question the officer carefully to make sure the driver was given all the required information and determine whether it was sufficient. If the officer gives different versions during the hearing of what was told to the driver, look for any contradictions. Did the officer correctly convey the required information?

For example, the officer may not have provided precise information to the driver regarding the suspension or revocation being mandatory upon refusal. The officer may have told the driver, ”you might lose your license, if you don’t take a test’. The form states that the driving privilege will be suspended or revoked. Carefully question both the officer and the driver to decide exactly what the driver was told. Unless the officer conveyed at least “a strong likelihood of suspension or revocation,” a set aside of the APS action be required. Court case examples:

In Janusch v. DMV, 1969 276 Cal.App.2d 193, the officer told the driver at the scene his driver’s license would “probably” be suspended by DMV if he did not take a test. The court ruled that it was preferable to give the warning in a positive way, i.e. failure to submit to a chemical test will result in suspension or revocation; however, the court concluded that use of the word “probably” did not invalidate the warning.

In Smith v. DMV, 1969 1 Cal.App.3d 499, the officer read the driver the correct warning from a card. The officer later explained to the driver, “Chances are that you will lose your license”. The court stated that the later use of the words “chances are” did not invalidate the warning.

In Giomi v. DMV, 1971 15 Cal.AppJd 905 the officer told the driver a refusal “could’ result in a suspension. The court considered the driver’s reply to the officer, “they won’t take my driver’s license” as an indication that the driver was in fact misled as to the consequences of refusal to take a chemical test. The court ordered DMV to set aside the suspension.

12.129 An Officer Must Give the Admonition

A peace officer must admonish or warn the driver of the consequences of refusing. Ordinarily, this is the arresting officer. Occasionally, an officer other than the arresting officer warns the driver. While this is legally acceptable, it means you should determine who admonished the driver. If the sworn and unsworn reports do not sufficiently establish the admonition, carefully determine which officer(s) need to be subpoenaed to testify.

In Giomi v. DMV, 1971 15 Cal.AppJd 905 the officer told the driver a refusal “could’ result in a suspension. The court considered the driver’s reply to the officer, “they won’t take my driver’s license” as an indication that the driver was in fact misled as to the consequences of refusal to take a chemical test. The court ordered DMV to set aside the suspension.

12.130 An Officer Must Give the Admonition

A peace officer must admonish or warn the driver of the consequences of refusing. Ordinarily, this is the arresting officer. Occasionally, an officer other than the arresting officer warns the driver. While this is legally acceptable, it means you should determine who admonished the driver. If the sworn and unsworn reports do not sufficiently establish the admonition, carefully determine which officer(s) need to be subpoenaed to testify.

Offering the Tests
After the officer reads the admonition to the driver, the driver may spontaneously refuse the chemical test. The driver may say words to the effect, “I’m not taking any test”. That is deemed a refusal and the officer does not need to offer any tests or discuss the APS law with the driver any further. More commonly, after the officer reads the admonition, the driver does not reply or does not specifically refuse the chemical test. Then the officer should ask the driver to take the test, and note that the driver refused to answer. In these cases, it is difficult to prove a refusal without a request.

12.131  Offering the Tests Individually

The Officer’s Statement (DS 367) form encourages officers to offer the chemical tests individually. The DS 367 includes a space for the driver’s reply to each offer. When the tests are offered individually, and the DS 367 or testimony shows the driver’s individual replies, it provides a stronger case for a refusal action. The law does not require the officer to individually offer each tests, unless the driver had agreed to take a test, but subsequently refused to choose which one. In that case, the officer must offer each test. If the driver does not specifically refuse each test offered, the officer should choose the test (see James v. DMV, 1968 267 Cal.App.2d 750). Most officers are instructed to choose the easiest test to administer.

12.132 Reoffering A Test

Per case law, Dunlap v. DMV, 1984 156 Cal.App.3d 279 an officer does not have to re-offer the chemical test after a driver refuses to submit to any testing. Sometimes a driver refuses one test, and then agrees to take another test. If the driver was unable to complete the chosen test, does the officer have to re-offer the test the driver originally refused?

It depends on the circumstances:
• When the first “no” was qualified, the officer need not reoffer that test. Examples are, “I have asthma and can’t blow hard enough for the breath test,” or “They’re not sticking any needles in me.”
• When the first “no” was unqualified, the officer must reoffer that test. For example, the driver refused the breath test saying, “No, I’d rather take a blood test.”

12.133 Limited Test Availability
The officer may limit the available tests when one test is at a different facility. For example, the blood test may not be available at the same facility as the breath test. If the driver selects the breath test and the officer cannot return to the blood test facility, the driver must be warned. The warning must advise the driver that if a blood test is not
selected first, it cannot be given later.

Here are some examples from case law:
In Buchanan v. DMV, 1979 100 Cal.AppJd 293 the driver refused to choose a test until he reached the jail. Officers told him if he wanted to take a blood test, he must decide before going to the jail. The driver remained silent. Arriving at the jail, the driver requested a blood test. The court ruled the officers did not have to take the driver for the blood test because they had warned him a blood test had to be taken before arriving at the jail.

In Noli v. DMV, 1981 125 Cal.App.3d 446 the driver was combative and required restraint. He was told at the medical center only the blood and breath tests were available there because the officers did not wish to remove his handcuffs for the urine test. He was taken to the jail for the requested urine test. At the jail, he was unable to complete the test. Officers were not required to take the driver back to the medical center for the blood or breath test because they had been categorically refused. The court also stated there was little reason to believe the driver would take one of the tests from his uncooperative behavior.

[DMV ADMINISTRATIVE PER SE HEARINGS Driver Safety Manual, Chapter 12, p. 12-55 through 12.61]