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DUI Chemical Test Refusal Penalty - Vehicle Code 23612 VC

Posted by Sam Israels | Jan 01, 2024

California Vehicle Code 23612 VC requires motorists arrested for DUI to submit to a breath or blood test and presumes drivers give implied consent to testing. If you refuse a chemical test, you will face a minimum one-year driver's license suspension.

Under California's implied consent law, anyone who drives a motor vehicle automatically consents to chemical testing for alcohol or drugs in their bloodstream if an arresting police officer asks for it. 

DUI Chemical Test Refusal Penalty - Vehicle Code 23612 VC
VC 23612 requires motorist arrested for DUI to give a breath or blood test or face additional penalties.

Thus, VC 23612 imposes an additional penalty for drivers who refuse to comply with chemical testing to determine their blood alcohol content (BAC). This law is often called the "refusal enhancement." 

In other words, under this law, you can have your driver's license automatically suspended and face additional jail time if you refuse to submit to DUI chemical tests and are convicted on Vehicle Code 23152 VC driving under the influence.

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 to determine 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.

When a police officer pulls over someone on suspicion of DUI, they will often refer to this law as some do not understand they are legally required to submit to chemical testing.

Vehicle Code 23612 VC covers critical regulations regarding the arrest of somebody for DUI, such as the doctrine of implied consent, rules for law enforcement officers administering chemical testing, and the penalties if the arrestee refuses chemical testing. Implied consent in California means that if you get behind the steering wheel of a car and drive it, you are automatically giving consent to being chemically tested. 

If you are arrested on suspicion of DUI, you must submit to the testing based on the fact you already gave your consent by driving the vehicle. If you refuse to test, you violate the law and could face additional penalties if convicted of the original driving under the influence charge.

What Are the Chemical Testing Rules?

Vehicle Code 23612 details how police must administer testing if you're arrested on suspicion of DUI, including the following rules:

  • Police must inform you of your rights and obligations under the law.
  • You can choose between a breath or a blood test but must take a blood test if police believe you are DUI of drugs (DUID).
  • Police can order a blood test if you are unconscious or deceased.
  • If you have a medical condition (hemophilia) that precludes blood draw, you could be required to give a urine specimen. 

Preliminary Breathalyzer Tests vs. Chemical Testing

Suppose you are pulled over, and the police suspect you might be under the influence of alcohol. In that case, they might attempt to perform a breathalyzer test and other field sobriety tests at the scene. 

DUI Chemical Testing

This breathalyzer test on the roadways is also called a preliminary alcohol screening (PAS) test. It is done by blowing into a device to measure the blood alcohol content based on your breath.

You need to distinguish a PAS from a chemical test performed during an arrest process at a police station. A chemical test for DUI is typically done through blood or breath, and they are usually more accurate than PAS tests conducted in the field.

Simply put, chemical breath tests differ from the preliminary alcohol screener (PAS). The PAS is the roadside breath test to help determine whether there is probable cause to arrest someone for DUI. 

VC 23612 mandates police to tell DUI suspects that the PAS is not mandatory and that taking it does not complete their obligation to submit to chemical testing. You can refuse a breathalyzer test if you are pulled over for suspicion of DUI, but only before your arrest. 

You could also refuse to participate in any field sobriety testing. You need to remember the police are asking you to take these tests to build a case against you, but this does not mean they cannot still arrest you for DUI if they believe they have other evidence amounting to enough probable cause to justify the arrest.

What Rights and Obligations Must Police Tell You?

A Vehicle Code 23612 VC refusal enhancement can only apply after police officers have informed you of the following: 

  • You can choose between a breath or blood test but must submit to a blood test if you are suspected of drug intoxication.
  • You do not have the right to a lawyer before or during the testing due to the abovementioned "implied consent" law.
  • If you refuse to submit to chemical testing, your driver's license will be suspended, and the refusal can be used against you in court.
  • If you're convicted of DUI, your refusal will result in mandatory and additional jail time on top of the license suspension.

What Is the VC 23612 Penalties? 

Suppose you refuse to submit to alcohol or drug chemical testing after a DUI arrest. In that case, you will face two penalties under this sentencing enhancement. First, your driver's license is immediately suspended or revoked, and additional jail time if you are convicted of the underlying DUI case.

Driver's License Suspension

The amount of time your driver's license will be suspended depends on your prior DUI arrests in the past ten years:

  • A one-year suspension for a first-time DUI offense,
  • A two-year suspension for the second DUI offense,
  • A three-year suspension for a third and subsequent DUI offenses.

Additional Jail Time 

Additionally, you'll face the following mandatory sentencing enhancements under VC 23612 if you're convicted of DUI:

•    An additional two days in jail for a first-time DUI offense, 
•    An additional four days in jail for a second DUI offense, 
•    An additional ten days in jail for a third and subsequent DUI offense. 

What Are the Defenses? 

Our Los Angeles DUI lawyers may be able to challenge the DUI refusal enhancement based on an unlawful arrest or that police failed to inform you of your rights and obligations.   

Maybe you were unlawfully arrested. Perhaps the police did not have probable cause to stop you. Maybe we can say that you were improperly informed of your legal rights.

An arrest for Vehicle Code 23152 VC driving under the influence is a challenging experience as it is alleged you refused a chemical test as part of your DUI arrest.

Contact an experienced DUI attorney to review the case details and discuss legal options. Cron, Israels & Stark has offices in Los Angeles, California.

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About the Author

Sam Israels

Sam J. Israels is a Law Firm partner with the Law Offices of Cron, Israels, & Stark. Mr. Israels received his J.D. degree from the Santa Clara University School of Law. Mr. Israels also previously worked at the Los Angeles Office of the City Attorney. He is admitted to practice law in the State o...

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