DUI With A Chemical Test Refusal?


Until about 10 to 15 years ago, I loved refusal cases because there were no chemical test results, so as long as we offered a plausible explanation as to what happened, refusal cases were usually better to try. These days, in virtually every jurisdiction, if someone refuses the chemical test police can get a telephonic search warrant and get the blood sample anyway, which makes it a more difficult case to defend, not only because we have to defend the reason for the refusal, but because blood test results are much harder to defend against.

Blood tests are much harder to defend, especially when they come after a breath test refusal, because you have to explain why they refused, so from that perspective it’s not better to refuse. In fact, now, if someone has been arrested and calls me asking what they should do, I always tell them to submit.  It’s so easy now to get a telephonic search warrant, the police will get the results anyway, one way or another, so it’s always better to submit to tests.

In addition to that, if the person’s license is subject to an interlock device restriction and they refuse to submit to the requested tests, that act alone can be charged as a felony. It’s harder now to defend a case in which there is a refusal than in years past, and the license consequences are also much greater; you may get a longer license suspension than you may have received if you had submitted and it can make the requirement of the interlock much longer.

For example, if someone is convicted of a 0.20% super extreme as a first offense, they’re required to do the vehicle interlock device for 18 months. If they refused, then they have to first go through the refusal suspension, where it would be 90 days with no driving, then they could get a restricted license for 9 months with an interlock, and then they would have to do the interlock for 18 more months after the suspension for a total of 27 months.  In other words, they could be driving with the interlock for almost two-and-a-half years, which is much longer than if they hadn’t refused to submit to the chemical tests.

Why Is an Ignition Interlock Device Imposed on DUI Offenders?

The interlock requirement is a not a restriction on vehicles but on the license, which means a person who is subject to the interlock requirement must install an interlock device in any vehicle they drive, whether the vehicle is in that person’s name or not.  For example, if someone has a motorcycle and a car, they can install it on the car and drive, however, they can’t install an interlock on the motorcycle and cannot drive the motorcycle.  Since the interlock requirement is a license restriction they are not required to install an interlock on all vehicles in their name, however, can only drive a vehicle with an interlock on it, no matter whose name the vehicle is in.  There is no longer an exception for driving a company vehicle without an interlock on it.  Any vehicle driven must have an interlock on it.

If someone is found guilty of underage drinking and driving, meaning they’re less than 21 years old at the time of the offense, and they have any alcohol in their body at all and they’re convicted of that offense, their license will be suspended for two years and they must have an interlock during that time if they want to drive. This sometimes raises an interesting point as to which is worse; if someone is 20 years old and get a DUI, and they’re also charged with underage drinking and driving, if found guilty of the DUI, they will have a 6 month interlock requirement, but if they were found guilty of underage drinking and driving, which only requires proof of any alcohol within the body and not any impairment, they will get a two-year suspension.  In terms of the license consequences an Underage Drinking and Driving is worse than a DUI, however for consequences in general, a DUI is worse than an Underage Drinking and Driving.

Sometimes we can get the prosecutor to dismiss the underage drinking and driving as a condition of plea to the DUI, so they get a shorter license suspension, even though they may have only had a trace of alcohol in their body and weren’t necessarily impaired, but they plead guilty of DUI, rather than underage drinking and driving, in order to avoid that two-year suspension.   The decision whether to do this or not depends on the particular client’s circumstances.

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