Refusal to Take a BAC Test Due to Inability in a San Diego DUI Case

  • September 1, 2017

    California is one of many states that applies the principle of implied consent to DUI arrests. Under this principle, when you are issued a California driver’s license or operate a vehicle in the state, you implicitly give your consent to submit to alcohol screening upon arrest for suspicion of driving under the influence. Should you fail to comply with this request and refuse testing, you will automatically be charged with refusal and thus be subject to additional penalties.

    However, there are situations where a driver may make every attempt to comply with the request and submit to blood or breath testing, but for whatever reason, fail to complete the testing. Should this happen, it is essential that you are aware of your rights and how your failure to properly complete the required alcohol testing will affect your DUI case.

    Probable Cause and Post-Arrest Alcohol Testing
    If you are pulled over on suspicion of driving under the influence in San Diego and the officer determines that they have probable cause to arrest you, California’s law of implied consent means that you are legally required to submit to chemical testing to determine your blood alcohol concentration. In most cases, you will be given the choice of taking either a blood test or breath test, and if neither of these tests are available for whatever reason, you will then need to submit to a urine test. However, if you are currently taking prescribed anti-coagulants or suffer from hemophilia, you cannot be required to submit to a blood test and instead will be asked to provide a urine sample or perform a breath test.

    If you refuse to comply with the request, you will then be charged with the crime of refusal. However, simply taking the test isn’t enough to qualify under the law of implied consent. Instead, you must actually complete the test and return a real result in order to be considered to have complied. Otherwise, if the tests do not provide conclusive results, you can still be charged with refusal even if it wasn’t your fault that the tests were inconclusive.

    Failing to Complete the Required BAC Test
    Even if you do not refuse to take the test, you can still be charged with refusal if you are unable to actually complete the test. For instance, if a person is asthmatic or has breathing problems that prevent them from properly blowing into the breathalyzer, they will then be required to submit to a blood test. Unfortunately, if the officer is unable to find your veins or otherwise can’t take a blood sample, you will still be charged with refusal even though you made every attempt to comply with the required testing.

    California state law requires that you be allowed to attempt to take both a blood and breath test before being charged with refusal. Unfortunately, if neither of these tests provides conclusive results, you will still be considered to be in violation of the law of implied consent. The law does not provide exceptions for people who are unable to complete the required blood alcohol testing. If you are arrested on suspicion of DUI and are unable to provide either a breath or blood reading, it is still considered the same as refusing to take the test. In this case, your reasons for not being able to complete the required testing are irrelevant.

    That being said, a qualified San Diego DUI lawyer can still potentially help you to beat the charge of refusal by arguing that you made every attempt to cooperate with the officers. An experienced attorney can make the argument that you attempted to take the tests with good faith, but were unable to do so due to circumstances out of your control. Although there is no guarantee that you’ll be able to avoid the charge of refusal, a strong defense and a sympathetic judge could see the additional penalties for the refusal charge lessened or dropped altogether.

    For this reason, it is absolutely vital that you immediately contact an experienced DUI attorney should you be unable to complete the required blood alcohol testing for any reason. You shouldn’t have to be punished just because you couldn’t complete the required testing, and hiring a powerful DUI attorney gives you the best chance of making this so.

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