What to do f my son was arrested for a DUI and refused to be tested?

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What to do f my son was arrested for a DUI and refused to be tested?

The police took him to hospital strapped him down on a gurney and told him to pee. He said he needed to stand up to pee. The cop got aggressive and told nurse to use catheter without concent. He told the nurses not to say anything if questioned. What recourse does my son have?

Asked on March 3, 2014 under Criminal Law, California


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Implied Consent

California law requires you to take a breath or blood test if you are arrested for a DUI. California’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC). The test must be taken at the time of your arrest, and the officer should give you the choice between a blood or breath test. If neither blood nor breath tests are available, then you have to take a urine test. The law also gives a special exemption for people taking anticoagulants for a heart condition or who have hemophilia – they don’t have to take the blood test.

Additionally, California’s implied consent law says that you consent to taking a preliminary breath test, even if you have not been arrested. This works like a field sobriety test. The officer will use the results to establish probable cause that you were driving under the influence. You do not have to take this preliminary test, and the officer should say so. Refusing it, however, probably won’t work in your favor if the officer has some other reason to think you had been drinking. Based on that other reason, the officer could still arrest you and then you will be required to take a test under the law described in the paragraph above.

If you are arrested, the officer should tell you that if you refuse to take the test, you will be fined, will lose your license, and that you could be sent to jail if you are later convicted of a DUI. Also, the officer shall advise you that you don’t have the right to speak to an attorney about whether you should take the test and in fact your refusal can be used against you in a court of law. You can read California’s implied consent law in the California Vehicle Code Section 23612.

Refusing to Take the Test

In California, the penalties for refusing to take a blood, breath, or urine test begin with a one-year suspension of your license. You could lose your license for two years if this is your second refusal or if you already had a reckless-driving or DUI conviction within the last ten years. The penalty jumps to a three-year suspension for your third refusal or if you have had more than one reckless-driving or DUI conviction within ten years. The fine is the same – $125 – whether this is your first, second, or third refusal.

The penalties for refusing to submit to a chemical test are found in the California Vehicle Code Sections 13353 and 14905/

Should You Refuse to Take a Mandatory DUI Test?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested for a DUI. In California, the consequences for a DUI, including at least 96 hours in jail and fines from $390 to $1,000, are more severe than refusing a chemical test. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

Get Help With Your DUI

If you have been arrested on a DUI charge in California or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

Answer: You should consult with an attorney in your locality to help your son. One can be found on attorneypages.com.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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