Top 5 Refusal Defenses
Refusal cases present their own unique set of defenses at a hearing.
One involves the due process problem when an officer checks the wrong box on the DS367 police report form. Two of them exploit an officer’s failure properly to advise (or “admonish”) the motorist while offering the test. One defense is based on the motorist’s medical condition at the time of the arrest (particularly in accident cases), and one is the simple “he said, she said” defense that the motorist simply did not refuse the test.
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Refusal cases are among the most difficult, but by applying one or more of these five defenses, you increase the likelihood that you will beat DMV.
Refusal Defense #1
Improper Hearing Notice
This defense is a favorite among DMV attorneys.
Due process requires that any motorist be given notice of a hearing and the opportunity to challenge the officer’s statements that the motorist violated the law. This notice is provided on the pink temporary license the officer gives the motorist at the time of arrest and again on the other DS367 pages sent to them with DMV’s discovery packet. This notice is contained in a checkbox on the front page of the form and may be either a .08 percent blood alcohol content (BAC) checkbox, a refusal checkbox, an under 21 .01 percent BAC checkbox or a DUI probation .01 percent checkbox. By checking the proper box, the officer gives the motorist notice of the correct hearing.
For some reason, officers writing up refusal cases frequently check the .08 percent BAC checkbox instead of the refusal checkbox, which does not provide the motorist with proper notice of the hearing. A motorist going into a hearing expecting to be charged with driving with a .08 percent BAC will not be prepared to defend a refusal hearing, and that is the nature of the defense.
If you refused the chemical test, but the officer checked the .08 percent BAC box on your temporary license, you need to hire an attorney to do the hearing without you present so the officer can be “caught off guard” by the lack of notice. When the officer objects that you must be there to testify (now that the officer knows it’s a refusal hearing and not a .08 percent BAC hearing), the hearing officer will usually deny it and suspend your license. Then you have a writ with attorney’s fees.
Refusal Defense #2
Because the Vehicle Code requires the officer to advise a motorist that his or her license will be suspended or revoked for refusing a test, DMV has the burden of proving that a proper admonishment was made. There are two ways to use this defense: by challenging DMV’s showing of a proper admonishment and by testifying yourself that it was never done properly.
There is a place on the reverse side of the DS367 officer’s statement where the officer is supposed to record the admonishment information. Often the officer will fail to complete this side of the form, in which case DMV is supposed to send the form back to the officer to complete. Review your DS367 form carefully for omissions in the admonishment form. Also review any agency police report included with the discovery, as it can be used to supplement admonishment information contained in the DS367. If these documents do not provide adequate proof of a proper admonishment, DMV should not be able to suspend you for a refusal.
Testifying about the officer’s admonishment is trickier, as it will subject you to cross-examination by the hearing officer. But if the officer never advised you that your license would be suspended or revoked for refusing the test, this may be your only avenue of defense. Try to remember specifically what the officer said. Sometimes an officer will say that your license could be suspended/revoked (not that it would be), which provides a defense for improper admonishment.
Refusal Defense #3
This defense is similar to the improper admonishment listed in #2 above. Often, an officer will try to explain what the admonishment means in plain English, which only confuses the motorist. Sometimes an officer will read the motorist his or her rights before asking for a chemical test, which creates confusion about the right to an attorney.
If the officer confused you by going beyond the admonishment in the Vehicle Code (i.e., that your license would be suspended or revoked if you refused), you may have the officer-induced confusion defense.
Refusal Defense #4
Medically Explained Confusion
This is a defense recognized by the Court of Appeal in Hughey v. DMV (1991) 235 Cal.App.3d 752 and works particularly well in vehicle accident cases. The defense is based on the fact that someone whose faculties are impaired through trauma should not be suspended for not understanding his or her responsibility to take a chemical test.
This defense usually will require a declaration from a health care provider as was done in the Hughey case.
Refusal Defense #5
Driver Did Not Actually Refuse
This defense is probably the most common and usually results when the officer decides to call lack of cooperation a refusal. For example, a motorist may be unable to complete a breath test, and the officer decides the motorist is just “playing games.” The law requires the officer to offer a blood test in such a circumstance, but many times the officer will just write up a refusal. Similarly, it is not a refusal to inquire about the license of the person who is going to stick you with a needle. Often, such questions are met with the charge of refusing the test.
This defense will always require the motorist to testify at the hearing, so if you intend to avail yourself of this defense, find a friend or significant other to practice cross-examining you.