Law Offices of Erik Steven Johnson

247 N. Third Street, San Jose, CA 95112

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California Drivers and Implied Consent Attorney

Palo Alto Under 21 DUI defense lawyer

San Jose Lawyer for Clients Refusing to Take a DUI Chemical Test

The laws of "implied consent" mean that when you received a driver's license and agreed to drive on the roads in California, you also agreed to submit to a chemical test on suspicion of driving under the influence. Refusing to take a blood, breath or urine test can result in steeper penalties:

  • First offense: A refusal can result in a one-year license suspension.
  • Second offense: A refusal can result in a two-year license revocation.
  • Third offense: A refusal can result in a three-year license revocation.

However, when you are arrested for DUI, the officer must follow certain steps before a valid refusal can be sustained:

  • He must admonish you that refusing to submit to a blood, breath or urine test will result in at least a one-year license suspension. This admonishment must be clearly given and the choice of test should be allowed unless impractical to do so.
  • The admonishment must be post-arrest but before the test is administered. It is not unheard of for a police officer to admonish the driver only after a chemical test is administered.
  • The officer must properly fill out the DMV form (DS-367) and properly note the time of the stop, arrest and admonishment and that the driver refused after being advised of the consequences.

While some DUI offenders can receive a restricted license to drive to and from work with the installation of an ignition interlock device, individuals who are convicted of DUI after refusing a chemical test are not eligible.

There are defenses to refusal cases, including lack of probable cause for the stop, lack of suspicion of DUI and lack of proper admonishment of the consequences for refusing.


The U.S. Supreme Court announced in the case of Missouri v. McNeely that police officers need to obtain a warrant before extracting blood from a person, unless there are exigent circumstances making a warrant impractical or impossible. Although not commenting on implied consent laws, it appears that the court was reaffirming the age-old warrant requirement. Nevertheless, the California courts and DMV continue to proceed without requiring warrants in DUI cases. Thus refusal cases continue to be prosecuted.

Under The Age Of 21

California has a "no tolerance" law for underage DUI cases. In fact, persons under the age of 21 who are arrested for DUI face three separate statutory schemes: 1) zero tolerance and immediate confiscation of license 2) the adult misdemeanor per se statute of driving with a blood-alcohol content of .08 percent or above 3) a criminal infraction even if his blood-alcohol content was below .08 percent.

If convicted of a DUI or for the lesser infraction the license suspension is the same: one year. However, the underage driver may apply for a "critical need" license upon approval of both the DMV and the criminal court. This allows the underage person to drive from home to school or work and back.

Most of the defenses in other DUI cases apply, but the underage driver still faces the "zero-tolerance" prohibition even if it can be determined he or she was not driving with a blood-alcohol content of .08 percent or greater.

Age Does Not Matter but Legal Representation Does

It does not matter whether you have been arrested for a DUI over the age of 21 or if you have been arrested for a DUI while being underage - it is imperative to have qualified legal representation at your side. Attorney Erik Johnson approaches each case with care and dedication, call our Santa Clara County office at 408-246-3004 and schedule your free consultation.

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