Refusal DUI Defenses & Excuses per DMV

California DUI Refusal Defenses & Excuses which are recognized in DMV’s below Manual include a head injury that affected the driver’s ability to refuse to submit to a chemical test, when the driver is unconscious, or otherwise unable to understand the warning or refuse the test, special communication (language & hearing) problems, and “officer-induced confusion.”

San Diego DUI attorneys know of other legal defenses and lawful excuses not mentioned in the DMV manual, including Eberle v. DMV’s unavailability of tests at time of initial refusal & subsequent cure of refusal, Ross v. DMV’s request to see laboratory ID prior to blood, Thompson v. DMV’s radio interference causing inability of driver to comprehend warning, and McDonnell v. DMV’s officer-induced confusion (which is is more current than the first two 1960’s DMV cases site below).

In any event, California DUI defense lawyers may wish to start with DMV’s own material:

“12.134 Officer Induced Confusion

Per West v. DMV, 1969 275 Cal.App.2d 908 officer induced confusion must be apparent to the officer.  If officer induced confusion is not cleared up, the refusal is excused per Wethern v. Orr, 1969 271 Cal.App.2d 813. Drivers often say the Miranda warning, or part of the warning confused them. However, confusion is a valid excuse only when all of the following conditions apply:

• Did the officer confuse the driver? Confusion can be an issue if there are contradictions between an officer’s first “informal” warning and their later reading of the admonition.

• The officer was, or should have been, aware of the confusion, or the driver told the officer or otherwise conveyed to the officer (need not be verbal) they were confused.


• The officer did not attempt to clear up the confusion.

Areas in which the driver often alleges confusion are the PAS test, Miranda and intoxication.

12.135  Over 21, Confusion With The PAS as an FST

Confusion with the PAS test is usually a result of the officer’s failure to comply with §23612(i) Vc. The officer may use the PAS as an investigative tool, unless the driver refuses the PAS. Even though a driver may agree to take the PAS, they must understand there is still an obligation to submit to a blood, breath, or urine, if applicable, (See Section 12.005, BACKGROUND) test to determine the alcohol or drug content of the blood. The officer must advise the driver of the requirement for further testing and a right to refuse to take the PAS test.

12.136  Confusion With Miranda

Miranda was a 1966 landmark decision by the United States Supreme Court. The precipitating ruling protects suspects from being forced to incriminate themselves. It prohibits officers from interrogating suspects in custody without first advising them of their right to remain silent and their right to have an attorney present. Neither of these rights are operative under the APS law. Based on the Fifth Amendment to the U.S. Constitution, it applies to all law enforcement officers.

To avoid confusion, most officers do not give the driver the Miranda rights until after the APS test is completed or refused; however, many drivers are aware of the Miranda rights from television or other sources. If the officer does give the driver the Miranda rights, or has another reason to believe the driver was confused because of Miranda (e.g., the driver says, “I don’t have to say anything”.), rereading the APS Chemical Test Admonition is insufficient and the officer has to give an explanation. The officer must explain that the rights under Miranda do not apply to taking the chemical test. (See Kingston v. DMV, 1969271 Cal.App.2d 549 )

12.137 Confusion Due To Intoxication

Since alcohol and drugs impair judgment, many drivers at the refusal hearing will say they were confused, or imply they were confused, because of intoxication: “I was too drunk to understand; I was too drunk to refuse; I didn’t know what I was doing.” The courts have consistently ruled that confusion due to voluntary or self-imposed intoxication is no excuse. In Goodman v. Orr, 1971 19 Cal.App.3d 845 the court determined the driver’s state of mind is not the critical factor in deciding a refusal. For related emotional states and physical conditions that do not excuse a refusal see Section 12.148 When Physical & Emotional State Excuses Refusal.

12.138 Special Communication Problems

Admonishing a non-English speaking and/or hearing-impaired driver may pose special problems for the officer. The officer should make every reasonable effort to give the admonition. During the hearing, you will need to establish how the warning was given and whether it was sufficient. Examine the back of the DS 367 carefully, since this is your primary item of evidence. Subpoena the officer if the information on the statement is at all unclear or ambiguous.

The following are some guidelines to consider in each case:

Another Language:   If the officer is not familiar with the driver’s language, the officer should use an interpreter. If no interpreter is available, the officer will have to take the driver to a different location for an interpreter. The interpreter should be subpoenaed by the department to appear at the hearing.

Hearing impaired:   Admonishing a hearing-impaired driver can probably best be accomplished in the field by having the driver read the admonition printed on the DS 367. Notes may be exchanged to offer the tests, and document the refusal. The warning may also be given in sign language (dactylology), if the officer is proficient and the driver understands it. Subpoena the officer if they used sign language. In addition, you will need to arrange for an interpreter certified in the particular sign language the officer used.

12.139 Driver Fails To Complete The Test

If the driver is incapable, or states they are incapable of completing the test chosen, the officer must warn the driver about the remaining testes). The law states, “the person shall then have the choice of submitting to and completing any of the remaining test or tests, and the person shall be advised by the officer that the person has that choice.” This warning is in addition to the original Chemical Test Refusal admonition. A warning of the driver’s obligation to take the remaining testes) is sufficient.

12.140 Driver Refuses To Cooperate

The refusal portion of the APS law presumes some cooperation from the driver. It presumes the driver will cooperate at least to listen to the warning. Refusal to listen does not relieve the officer of the responsibility to give the warning; however, when a driver interferes with the process and becomes belligerent, it is probably a refusal.

Here is an example from case law that may help you decide:

In Morphew v. DMV, 1982 137 Cal.App.3d 738 the driver failed the field sobriety test given at the jail. The officer then tried to read the statement to the driver three times. Each time, the officer was only able to read a quarter to a half of the statement because the driver interrupted the officer by coming up to the officer and stating he had passed the sobriety test. Each time, the officer instructed the driver to return to the place he had been standing, and started reading the warning again. The third time the driver interrupted the officer’s reading, the driver tried to strike the officer with his fist. The officer, with another officer, restrained the driver and placed him in a cell. Before they placed him in the cell, the driver, whose language was very abusive, said, “I am not going to take the … test.” The officer never reached the part of the warning explaining a refusal would result in a six-month suspension, the law at that time.

The court ruled it was a valid suspension because .the driver’s own unruly conduct prevented the officer from completing the warning. The court concluded, “The inebriated driver, by obstreperous behavior, may subjugate neither the arresting officer nor the statute to his whims.”


The fourth issue in a refusal case is the refusal itself. Did the driver refuse to submit to, or fail to complete, a chemical test of their blood, breath, or urine when applicable, after being requested to do so by a peace officer?

12.146 Refusal May Be Verbal Or Nonverbal

Usually, refusal is verbal. Specific quotes from conversation are usually the best evidence; however, refusal may be shown in many ways, both verbal and nonverbal.

Relevant case laws:

• Butler v. DMV, 1981 115 Cal.App.3d 913: The driver refused to sign the blood test form and was subsequently deemed to have refused.
• Kesler v. DMV, 1969 1 Ca1.3d 74: The driver insisted on taking all three tests and deemed to have refused.
• Hasiwar v. Sillas, 1981 118 Cal.App.3d 295: The driver failed to provide two breath samples with results of 0.02% of each other, and deemed to have refused.
• Finley v. Orr, 1968 262 Cal.App.2d 656: The driver agreed to a breath test but refused to blow.
• McConville v. Alexis, 1979 97 Cal.App.3d 593: The driver only attempted a single breath test and the court deemed him to have refused.
• Lampman v. DMV, 1972 28 Cal.App.3d 922: The driver remained silent after the officer made several requests to take a test.

When necessary a peace officer can direct the forcible removal of a blood sample from a driver arrested for driving under the influence of alcohol or drugs. This can be done without the driver’s consent and considered a refusal of the test; however, one objective of the APS law is to provide a means of compliance that does not involve the use of physical force. (See Barrie v. Alexis, 1984 151.Cal.App.3d 1157)

12.147 When Physical & Emotional State Excuses Refusal

When the driver is unconscious, or otherwise unable to understand the warning or refuse the test, the refusal portion of the APS law excuses the driver. Section §23612(a)(5) VC authorizes the officer to give the chemical test in these situations, whether or not the driver was warned; however, the courts have consistently and severely restricted the
definition of the driver’s inability to refuse a test. Basically, if the driver is conscious, and appears to be responding rationally, they are responsible for their statements and actions.

Here are some examples:

In Bush v. Bright, 1968 264 Cal.App.2d 788, the court found that being grossly intoxicated is not an excuse of the refusal. A defense based on “too drunk to refuse” is closely related to “confusion,” (See 12.134). Unless the driver is unconscious, voluntary intoxication is no excuse.

In Hughey v. DMV, 1991 235 Cal.App.3d 752 the court ordered a set aside of Hughey’s refusal action based on his severe head injury. His neurologist testified the injury prevented him from making a rational response to the officer’s admonition.

The driver must put forth evidence to support that the driver suffered a head injury that affected his ability to refuse to submit to a chemical test.

• Establish the driver incurred a debilitating head injury by way of expert testimony from a qualified person knowledgeable about the driver’s medical condition and the effects on the driver.
• Establish a foundation for any medical documentation in support of the contention.
• Is the assertion supported by the officer’s reports?
• Was the officer aware of the driver’s injury?

In Holland v. DMV, 1979 92 Cal.App.3d 25 the trial court found Holland’s judgment impaired causing her to refuse to take the test; there is no suggestion Holland was unable to refuse; in fact, the record shows she objected strongly to the officer’s request she submit to chemical tests. The court determined the emotional state of the driver did not excuse the refusal.”

[California DMV Driver Safety APS Hearing Officer Manual Ch. 12, pp. 12-62 through 12-66]