DUI Test Refusal – California Vehicle Code 23612 VC

California’s implied consent law requires drivers who are lawfully arrested for driving under the influence (DUI) to submit to a breath or blood test. Refusing a chemical test after an arrest is considered a separate violation, leading to automatic license suspension, enhanced penalties, and additional criminal consequences.

A DUI test refusal under Vehicle Code 23612 VC can result in harsher penalties than a standard DUI, including increased jail time and the inability to obtain a restricted license. Understanding this law and the potential defenses against a DUI test refusal charge is essential for anyone facing these allegations. Seeking legal representation can be crucial in challenging the refusal charge and DMV penalties.

According to the statute:

“A person who drives a motor vehicle is deemed to have given their consent to chemical testing of their blood or breath for the purpose of determining the alcohol content, if lawfully arrested for an offense allegedly committed while the person was driving under the influence.”

“If a person refuses to submit to, or fails to complete, the required chemical test, the person shall be subject to increased penalties, including mandatory license suspension.”

This means that once arrested for DUI, refusing a chemical test is a separate violation that results in penalties beyond the standard DUI charge. Understanding California’s implied consent law and the potential defenses against a DUI test refusal charge is critical for anyone facing these allegations.

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    California’s Implied Consent Law: What It Means for You

    Under California’s implied consent law (Vehicle Code 23612 VC), all drivers automatically agree to submit to a breath or blood test if they are lawfully arrested for DUI. This law is designed to help law enforcement determine a driver’s blood alcohol concentration (BAC) after an arrest. Refusing to take a test after an arrest can lead to severe penalties, including a mandatory driver’s license suspension and additional consequences in court.

    Does Implied Consent Apply Before an Arrest?

    No. Implied consent only applies after a lawful DUI arrest. If a police officer asks a driver to take a preliminary alcohol screening (PAS) test before making an arrest—such as during a routine traffic stop—the driver can legally refuse, except in two specific situations:

    • Drivers Under 21: Anyone under the legal drinking age must submit to a PAS test if requested.
    • Drivers on DUI Probation: If you are on probation for a prior DUI conviction, refusing a PAS test is a violation and can lead to further penalties.

    Understanding your rights under California’s implied consent law is crucial. If you have been arrested for DUI or refused a test, consulting with an experienced DUI attorney can help you navigate the legal process and protect your driving privileges.

    What Happens If You Refuse a DUI Test in California?

    Refusing a breath or blood test after a lawful DUI arrest in California comes with immediate consequences under Vehicle Code 23612 VC, regardless of whether you are ultimately convicted of DUI. Test refusal is considered a separate violation, leading to both DMV administrative penalties and criminal consequences in court. Even if you believe refusing the test will help your case, it often results in more severe penalties than a standard DUI charge.

    DMV Consequences for Refusing a DUI Test

    Under California law, the Department of Motor Vehicles (DMV) imposes an automatic driver’s license suspension for refusing a breath or blood test:

    • First refusal – 1-year license suspension
    • Second refusal (within 10 years) – 2-year license revocation
    • Third refusal (within 10 years) – 3-year license revocation

    Unlike a standard DUI suspension, drivers who refuse testing do not qualify for a restricted license, meaning they will be unable to drive at all during the suspension period.

    Criminal Penalties for Test Refusal

    In addition to losing your license, refusing a DUI test can lead to harsher penalties in court, especially if you are convicted of DUI. The prosecution may argue that refusal indicates consciousness of guilt, making it harder to fight the charges. Potential criminal consequences include:

    • Additional jail time – 48 hours to 18 days depending on prior offenses
    • Higher fines and court costs
    • Mandatory DUI education programs
    • Stronger prosecution arguments in court

    Penalties for DUI Test Refusal Under VC 23612

    First DUI Test Refusal (No Prior DUIs)

    • 1-year driver’s license suspension (no restricted license eligibility)
    • 48 additional hours in jail (if convicted of DUI)
    • Increased fines and mandatory DUI education program

    Second DUI Test Refusal (Within 10 Years)

    • 2-year driver’s license revocation
    • 96 additional hours in jail (if convicted of DUI)
    • Longer DUI education program and higher fines

    Third DUI Test Refusal (Within 10 Years)

    • 3-year driver’s license revocation
    • 10 additional days in jail (if convicted of DUI)
    • Stricter probation terms and DUI penalties

    Felony DUI Test Refusal (If DUI Involves Injury or Prior Felony DUI)

    • License revocation of up to 3 years
    • Additional jail or prison time
    • Significantly increased fines and mandatory alcohol treatment

    Defenses Against DUI Test Refusal Charges

    No Lawful Arrest

    The implied consent law only applies if a driver is lawfully arrested for DUI. If the arrest was unlawful—for example, due to lack of probable cause—then the refusal charge may not be valid.

    Failure to Inform of Consequences

    Officers are required to clearly inform a driver that refusing a chemical test will result in an automatic license suspension and increased penalties. If law enforcement failed to provide this warning, the refusal charge could be challenged.

    Medical Inability to Complete the Test

    Certain medical conditions, such as asthma, lung disease, or anxiety disorders, can make it impossible to complete a breath test. Similarly, some people cannot safely give a blood sample due to health risks or needle phobia. If a legitimate medical reason prevented completion of the test, the refusal may not be valid.

    The Refusal Was Misinterpreted

    Officers sometimes mistake confusion, fear, or request for clarification as a refusal. If the driver did not clearly refusebut instead asked questions or hesitated, an attorney may argue that the refusal was not intentional.

    Unlawful DUI Stop

    If the initial traffic stop was illegal—such as a DUI checkpoint that violated California’s constitutional requirements—then all evidence obtained after the stop (including the alleged refusal) may be thrown out in court.

    How to Fight a DUI Test Refusal Charge

    • Prove the Arrest Was Unlawful – If there was no probable cause for the DUI arrest, the test refusal cannot be used against you.
    • Challenge the Officer’s Failure to Inform You – If law enforcement did not properly warn you about the penalties for refusal, the charge may be thrown out.
    • Show That the Refusal Was a Miscommunication – If hesitation or confusion was mistaken for refusal, evidence such as bodycam footage or witness testimony can support your case.
    • Present Medical Evidence – If a medical condition made it impossible to complete the test, documentation can be used as a defense.

    Possible Outcomes in a DUI Test Refusal Case

    • Case Dismissal – If law enforcement made procedural errors or lacked probable cause.
    • Charge Reduction – The refusal charge may be dropped, leaving only the standard DUI penalties.
    • Avoiding License Suspension – Winning at a DMV hearing can prevent the automatic one- to three-year suspension for refusal.

    How a DUI Lawyer Can Help With a Vehicle Code 23612 Violation

    One of the first steps an attorney takes is reviewing the details of the arrest to determine whether the officer had probable cause and whether all legal procedures were properly followed. Any violations of a defendant’s rights could provide grounds to challenge the charges. Additionally, many DUI test refusal allegations stem from miscommunication, medical conditions, or equipment malfunctions that prevent a person from completing the chemical test. A skilled attorney can present evidence demonstrating that the refusal was not intentional.

    Legal representation is also essential at the DMV hearing, where an attorney can argue against an automatic license suspension. Since a DUI test refusal under Vehicle Code 23612 VC triggers separate administrative penalties, a strong defense at this stage may prevent a lengthy revocation. If dismissal of the charge is not possible, a DUI lawyercan negotiate with the prosecution for a reduced sentence, potentially avoiding jail time or securing alternative penalties such as probation or DUI education programs.

    Without an experienced attorney, a DUI test refusal charge under VC 23612 can lead to severe consequences—even if the DUI charge itself is dismissed.

    Contact a Los Angeles DUI Attorney

    A DUI test refusal can lead to severe penalties, including automatic license suspension, additional jail time, and higher fines. Even if the DUI charge is dismissed, the refusal itself can still result in long-term consequences. Fighting these charges requires an experienced legal strategy.

    With over 20 years of experience, Attorney Hashemi has successfully defended clients facing DUI charges, test refusal allegations, and other serious driving offenses in Los Angeles. He understands how to challenge unlawful arrests, procedural violations, and misinterpretations of test refusals to fight for the best possible outcome.

    If you are facing a DUI test refusal charge, don’t wait to take action. Schedule a free consultation today with a Los Angeles DUI defense attorney to discuss your case and explore your legal options.

    Schedule Your Consultation Today

    Arash Hashemi, a skilled Los Angeles criminal defense attorney, providing expert legal representation for clients in California.

    Disclaimer: The content provided here is for informational purposes only and does not constitute legal advice. It is not intended to predict outcomes, as individual circumstances vary and laws may change over time. Those seeking legal advice should consult with a qualified attorney to understand how current laws apply to their specific situation. For detailed legal guidance on the topics discussed, please contact our law firm directly.