Understand Refusal Suspensions

Acting Against Consent

Understand Refusal Suspensions

Under California law, any motorist who drives a vehicle is deemed to have consented in advance to taking a chemical test if arrested for DUI. There are three types of refusal suspensions for failing to complete a chemical test:

  1. Refusal for drivers 21 and over following a DUI arrest;
  2. Refusal for drivers under 21 following an alcohol-related detention or arrest for DUI/drugs;
  3. Refusal for drivers suspected of violating DUI probation.

If any of these motorists refuses a chemical test after being arrested or detained, the police officer will confiscate their driver’s license, cite them for a refusal violation, and send paperwork to DMV that will automatically suspend or revoke their license in 30 days.

As with most administrative suspensions, you have the right to a hearing to challenge the refusal action if you demand a hearing within ten days of the citation or find some sort of way around it. (There are some ways around the ten-day deadline if you miss it.)

If you do not request a hearing, the one year suspension becomes effective thirty days after the citation (if it is your first offense). With one prior alcohol or drug-related driving offense in ten years, it will be a two-year revocation, and with two prior offenses, a three-year revocation. There is no restricted or hardship license available during a refusal suspension or revocation, although by taking a writ action in superior court, a judge can grant you a stay of the suspension/revocation while the action is pending.

Section 13353 provides for a suspension in the event a motorist 21 years of age or older refuses or fails to complete a chemical test following a valid DUI arrest. For motorists under 21 or on DUI probation, Section 13353.1 provides a similar process. A first offense refusal suspension lasts one year with no restricted license available (Section 13353(a)(1) and Section 13353.1(a)(1)). A refusal with one alcohol-related prior offense in 10 years results in a two-year revocation (Section 13353.1(a)(2) and Section 13353.1(a)(2)), and a refusal with two prior alcohol-related offenses in 10 years results in a three-year revocation (Section 13353.1(a)(3) and Section 13353.1(a)(3)). Two refusals will result in a lifetime commercial license ban. (Section 13353(b).)

Technically, your license is suspended as soon as the police officer confiscates your license and serves you with the Notice of Suspension/Revocation under Section 23612 (21 and over), Section 13388 (under 21) or Section 13389 (DUI probation). However, there is a built-in 30-day stay of the suspension to give you time to request a hearing and make the suspension constitutional. Within five business days of the arrest or detention, the police officer must prepare a sworn statement of all the facts supporting the decision to serve the suspension/revocation order. (Section 13380.) (A late-prepared sworn statement may create a defense to the entire case.)

DMV is supposed to conduct an internal review of the report to decide if the suspension/revocation is warranted (Section 13557), but experienced DMV attorneys question whether a meaningful review ever takes place. DMV is supposed to rescind the suspension/revocation unless it finds four facts to be true (Section 13357(b)(1):

  • The peace officer had reasonable cause to believe the motorist violated the DUI laws;
  • The motorist was placed under arrest or lawfully detained;
  • The motorist refused or failed to complete a chemical test; and

The motorist had been told that their license would be suspended or revoked if they refused the test.
These are the same four issues that DMV must establish if you request a hearing to challenge the suspension. (Section 13358(c)(1)), and they are the same four issues that we take to a superior court judge in a writ of mandate action.

VC 13353, VC 13353.1, VC 13357, VC 13358, VC 13380, VC 13388, VC 13389

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