Under California law, when a person gets a California driver’s license, they are agreeing (for Department of Motor Vehicles’ purposes) to allow a chemical test (either breath or blood) to be conducted, which is different than in the criminal context.
It’s generally a bad idea to refuse a chemical test, particularly a blood test, because there are certain harsh penalties that potentially come with that at the Department of Motor Vehicles and in court as well, but whether somebody can refuse to submit to a blood test raises an interesting question. The answer is yes, somebody can refuse to submit to a chemical test.
There are certain circumstances where the officers may force a blood draw, but more likely than not, if somebody refuses to submit to a blood test, the officers will advise them of what their obligations are and what they are required to do.
If the person still chooses not to submit to a blood test or a breath test, then the officers will indicate that it is a refusal, and they will write up their paperwork stating that the person refused to complete a breath test, a blood test or both, depending on whether the charge is for alcohol, drugs or a combination of them. So, it is possible for someone to refuse, but by doing so there are some serious disadvantages or potential disadvantages. However, there are also some very positive things that can come out of a refusal case.
If someone chooses not to submit to a breath or a blood test, then the prosecution ultimately will be missing some very important information that they would really like to show to a jury to try to get a conviction. In refusal cases we don’t have a number that a prosecutor can point at and say, “Here are the blood test results; it’s a 0.08 or above,” or whatever it may be. They don’t have that, which means the prosecution’s case is going to have to rely upon matters that are more subjective or open to interpretation like field sobriety tests or driving patterns.
When fighting for conviction, it’s much more difficult for a prosecutor to to get 12 people to agree unanimously that a person is impaired from alcohol or drugs or both simply based on the way they drive or how they do on the field sobriety test. There are no numbers from tests and without that, cases are better able to be defended. So although there are some real potential pitfalls in refusing, there are some advantages as well.
Can a Police Officer Administer a Combination of Tests at a Traffic Stop?
Police officers in the field are given a wide range of latitude on how an investigation is conducted. Officers get away with doing a lot of different things, but there are certain standardized procedures that are supposed to be followed in a driving under the influence case, so they are not supposed to just jump to a blood test or just assume that somebody is impaired and go straight to a chemical test. They are supposed to go through a series of field sobriety tests before forming an opinion about whether the person may or may not be impaired, ultimately completing their investigation with a chemical test – breath or blood.
When we’re dealing with blood tests, a lot of times those are related to drug DUIs, and there are different procedures or policies that officers will follow if they are properly trained. In particular, we’re talking about a drug recognition evaluation, a DRE evaluation, and part of the DRE evaluation is that the officer go through a 12-step process that includes not only a blood or urine test upon completion of the protocol, but also it includes a breath test because part of the DRE evaluation is to rule out alcohol to determine if the person is alcohol free or not.
Many times officers will have a person who has been arrested for driving under the influence submit to a breath test back at the station to determine whether there is or is not any alcohol in the system. Even if the person is alcohol-free, the officers may then go forward and demand that a blood test be done to determine the presence of any drugs in the system. People often will end up having both breath and blood to determine whether or not they are impaired from alcohol or drugs or a combination of both.
What Happens If They Draw Blood and Find Nothing?
If someone is arrested and submits to a blood test and the blood test does not come back with any alcohol or drugs in it, then when that’s reviewed by a prosecutor, it is unlikely that it would be filed as driving under the influence charges. They may file reckless driving charges or something like that, or they may choose to just not file anything and reject the case.
Additionally, if they do a test, levels may come back low – below 0.08 – and depending on the jurisdiction, depending on where you are and depending on what that number is and how long it had been since the person was driving, prosecutors have the discretion to file charges or reject the case and not file charges.
So it’s going to be a very fact-specific analysis depending upon the case, where the case was, what the arresting agency was, how long the delay between the driving and the test was and what the numbers were that came back on the test.
For more information on Refusing Blood Draws in California, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (310) 424-3145 today.
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