Is it clear when someone “refuses” to take a blood test or breath test ?


Before I address the ambiguity of a chemical test refusal, I have talked to several individuals that have told me that they believe they have a right to refuse a chemical test (breath or blood).  Even though it seems that it would be common sense that a chemical test would potentially be self incriminating, the courts have deems chemical tests to be “non-testimonal” (Schmerber v. California (1966) 384 U.S. 757).  According to Finley v. Orr (1968) 262 Cal.App.2d 656, you have no constitutional right to refusal a chemical test. The courts have also ruled that there is no right to talk to an attorney before making a decision on whether on not to take a chemical test or which chemical test to take.

Whenever someone is arrested for DUI, the police officer must give them a choice to take a breath test or blood test.  If that person declines to take either test, that is considered a “refusal.”  Refusing a chemical test has license consquences through DMV and more severe penal consequences through the court process.

There are some circumstances where it is not clear whether there really was a refusal to take a chemical test. For example, when a denied request to see a blood technician’s identification or professional credentials before submitting to a blood test the court found it not to be a refusal. (Ross v. DMV (1990) 219 CA3d 398)

If the police officer has failed to give a choice between breath and blood, then there is no refusal.  If one of the tests is unavailable, then failing to submit to the only remaining test would constitute a refusal.

If a person is incapable of communicating, then he is deemed incapable of refusing.  If an individual is in an accident where head injury has occured and there is either disorientation or unconsciousness, then this person is incapable of refusing. If the officer cannot communicate because the driver speaks a different language or the driver is deaf and the officer cannot sign, then there can be no refusal. With a deaf person, writing notes would take care of the communication problems as long as the officer is smart enough to think of writing notes in order to communicate.

When a breath test is unavailable and an officer is requiring a person who is a hemophiliac to take a blood test and that person refuses, that is not a refusal under the law because the hemophiliac is exempt under Vehicle Code §23612(b).  Also, under Vehicle Code §23612(c), anyone with heart conditions that require anticoagulant medication is also exempt.  But, remember if a breath test is available to the hemophiliac or anticoagulant guy, the breath test must be performed.

Sometimes, when charged with refusing a chemcial test by a police officer, it may not necessarily be a “refusal.”

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