Vehicle Code 23612 VC - DUI Chemical Tests Refusal Enhancement
One of the key principles of California's strict DUI laws is the principle of "implied consent," meaning that anyone who drives a motor vehicle in the state automatically consents to chemical testing for the presence of alcohol or drugs in their bloodstream if an arresting police officer calls for it.
To that end, Vehicle Code 23612 VC imposes an additional penalty for drivers who refuse to comply with chemical testing to determine their blood alcohol content (BAC).
This legal stipulation is commonly called the "refusal enhancement." Under this law, you cannot only have your license automatically suspended for refusing to submit to testing, but you can also face additional jail time if you are ultimately convicted of DUI.
In other words, this statute requires motorists arrested for DUI to submit to a breath or blood test. The law presumes car drivers give implied consent to testing. Anyone who refuses to take chemical tests, such as breath or blood, faces a minimum one-year license suspension.
VC 23612 says, “(a) (1) (A) 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 alcoholic content of their blood if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.”
This law is often referred to by police when people are pulled over for DUI. While the statute is clear, there is often a misunderstanding of the law, and some don't know their rights when they are pulled over on a traffic stop on suspicion of driving under the influence. Let's review this state law in more detail below.
Overview of VC 23612
Vehicle Code 23612 discusses several key regulations regarding the arrest of someone on suspicion of DUI, namely:
- The doctrine of implied consent;
- The rules by which law enforcement officers must administer chemical testing; and
- The penalties if the arrestee refuses chemical testing.
What Is Implied Consent?
VC 23612 plainly states the doctrine of implied consent as follows:
"A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153 [California's DUI laws]."
Put more simply; it means if you get behind the wheel of a motor vehicle in California, the state counts this action as consent to being tested.
Therefore, if you are arrested on suspicion of DUI, you must submit to the testing because you've already given your consent by driving the vehicle. If you refuse, you violate the law and are subject to further penalties if convicted.
What Are the Rules of Chemical Testing?
VC 23612 also provides the legal framework behind how law enforcement must administer testing if you're arrested on suspicion of DUI. These include the following rules:
- Law enforcement must inform you of your rights and obligations under the law;
- You are given the right to choose between a breath or a blood test. However, you must take a blood test if you're suspected of having drugs in your system;
- If you're unconscious or deceased, law enforcement may order the blood test on your behalf;
- If you have a medical condition (e.g., hemophilia) that precludes blood drawing, or if neither a blood nor breath test is available, your urine will be tested instead. You'll be required to provide a specimen.
Chemical breath tests are different from the preliminary alcohol screener (PAS). The PAS is the roadside breath test that police use to help determine whether there is probable cause to arrest someone for DUI.
VC 23612 requires police officers to tell DUI suspects that the PAS is not mandatory and that taking the PAS does not complete their legal obligation to submit to chemical testing if they are arrested.
Informing You of Your Rights and Obligations
For the Vehicle Code 23612 VC refusal enhancement to be applied to your case, law enforcement must inform you of the following things:
- You may choose between a breath or blood test;
- If you choose a breath test and are suspected of drug intoxication, you'll also be required to take a blood test (breathalyzers don't detect drugs);
- You do not have the right to an attorney before or during the testing because you've already given your "implied consent" by driving;
- If you refuse to submit to the test, your license will be suspended, and your refusal may be used against you in court; and
- If you're ultimately convicted of DUI, your refusal to submit to the test will result in mandatory and additional jail time in addition to your license suspension.
Do I Have to Submit to a Field Breathalyzer Test If I'm Not Under Arrest?
No, you don't. VC 23612 only applies if you've been formally and lawfully arrested.
If you're pulled over, and the officer asks you to submit to a breathalyzer test on suspicion of DUI, you have the right to refuse if you're not under arrest. However, the officer may still choose to arrest you, and at that point, your implied consent kicks in, and you'll be required to submit to testing.
What Are the Penalties for VC 23612?
Refusing to submit to chemical testing after a DUI arrest will result in two penalties under the sentencing enhancement; an immediate suspension or revocation of your driver's license and additional jail time if you are ultimately convicted of DUI.
Refusing to submit to alcohol or drug testing after a DUI arrest will automatically suspend or revoke your driver's license. The amount of time depends on your prior DUI arrests in the past ten years:
- For a first DUI offense: a one-year suspension.
- For the second offense: a two-year revocation.
- For the third and subsequent offenses: a three-year revocation.
Additional Mandatory Jail Time Upon Conviction
In addition to having your license suspended, you'll face the following sentencing enhancements under VC 23612 if you're convicted of DUI:
- For a first DUI offense: An additional two days in jail.
- For the second DUI offense: An additional four days in jail.
- For the third and subsequent DUI offenses: An additional ten days in jail.
Defending Against Refusal Enhancements
The two key stipulations of the refusal enhancement are that you were lawfully arrested and the police informed you of your rights and obligations.
Thus, an attorney may employ a few common defenses to get the refusal enhancement invalidated, as discussed below.
Perhaps we can argue that you were unlawfully arrested. The officer did not have probable cause to arrest you. Maybe we can say that you were improperly informed. The police failed to inform you of your rights and obligations, as mentioned above.
An arrest for Vehicle Code 23152 VC driving under the influence is a challenging experience, especially if you refuse a chemical test as part of your arrest.
It is in your best interest to contact an experienced DUI attorney as soon as possible after you are arrested. You can contact our law firm for a case review by phone or through the contact form. Eisner Gorin LLP is based in Los Angeles, CA.