-Mike, I know you were a police officer for more than
13 years, you were a DUI enforcement officer.
And, of course, now you're a criminal defense lawyer who
represents citizens accused of DUI.
I'm sure you get asked all the time this famous question, to
blow or not to blow?
If someone is pulled over for DUI, and let's say they know
they're intoxicated, they know they probably have a high BAC,
the officer wants them to take a breath test or a blood test,
should they do it or do they have a right to say no?
-Well, actually under California law, and it's two
part, I tell people all the time if your stopped at the
scene and they ask you to take a PAS test, preliminary
alcohol screening test, that under California law, you do
not have to take that.
-Now the PAS test, you're talking about the roadside,
the handheld breathalyzer.
-I am.
And we find a lot of confusion in that regard from people.
So what I tell folks is, and when I'm talking even to
family and friends and people I just come up with in the
community, that under California law, you're not
required to take the roadside PAS test.
But if the officer tells you you're under arrest for DUI,
then under California law you do have to
take a chemical test.
Normally, it would have to be a breath test or a blood test.
So I always tell people if you arrested submit
to a chemical test.
And I always urge them to take the breath test
over the blood test.
-So basically, the roadside handheld breathalyzer you
would say decline to do it.
But if you do, nevertheless, get arrested or taken down to
the station, at that point when they say you have to do a
breath test or a blood test, then you advise
them to take the test.
-Absolutely, I tell them that all the time.
And one of the reasons is this.
If they refuse to take a test and the DMV find that they did
refuse or the court finds they did refuse, there is an
enhanced suspension period.
For example, first time, one year.
If they have a prior DUI and there's a refusal it's a two
year revocation.
So there's really strict punishments and harsh
punishments if they refuse to take the chemical test.
-Now if a case were to go to trial or a case were to go to
court and the person refused to take a test so there is no
BAC, there's no sort of measurement of blood alcohol
level, as far as defending the case in court, is that an
easier case is that a harder case?
-It depends.
It depends.
I hate to give you a lawyer answer.
But the truth is it does depend.
The jury will look at the totality of the circumstances.
The DA will talk about a consciousness of guilt.
But certainly from a standpoint with no chemical
test, we have a great leeway to argue that our client was
not under the influence at the time, their blood alcohol
level was not 0.08% or greater, and there's no
qualified scientific evidence to show that effect.
-Let me ask you.
A client comes in and talks to you and says, I got arrested
for DUI, I refused to take the test, the officer marked it
down as a chemical test refusal, what the DMV calls a
chemical test refusal, what can you do at that point?
What is the client facing?
What's the consequence of that?
And what can you do to defend the case nevertheless?
-First of all, consequences for a first time DUI or a
first time refusal is a year suspension of
the driver's license.
Second time, let's say you have a prior DUI and you have
now a refusal, it's actually a two year revocation of your
driver's license.
But what we can do is this.
We can litigate that issue at the DMV hearing.
We get the police officer there to make sure that he
followed all the rules.
For example, they have to fill out a chemical test admonition
form which is on the back of what's called a DS367 or a
temporary driver's license.
OK?
And they have to read that word for word verbatim, and
they have to properly document the responses.
They have to give the person a chance to take a test.
And oftentimes, what we see is people say they won't take any
test, the cops bring them down to the station for a blood
test, and before they actually administer the blood test the
client says, well, I really want to take a breath test,
I'm afraid needles.
And the cops say, no, you're jerking me around.
It happens all the time.
You're jerking me around, we're just taking blood.
Well, that's not a refusal.
If someone says before they actually force draw the blood
or take the blood, and says, I want to take a breath test,
we'll win that refusal case.
And that happens a lot.
-So let's say it's first offense, I'm arrested for DUI.
I absolutely refused to take the tests and the DMV gives me
a one year suspension.
Can I get a restricted license?
Is there a way around that one year
suspension once it's imposed?
-There really isn't.
Now, with this caveat, if someone's a minor, someone 18
under 21, they're in school, they may be eligible for a
critical need license.
It's on a one on one basis.
It depends if there's no public transportation.
But I tell people all the time, refusals there's no
restriction.
-So if I was arrested for DUI, I was charged with a chemical
test refusal, then I can have this DMV hearing, right?
-That's correct.
-And you can represent me at this hearing.
-Absolutely.
-And try to avoid the one year suspension.
-Yes.
-And have you had success in many cases in avoiding the one
year suspension?
-We've had great success.
Because what happens is police officers, even though it might
be a real refusal, they failed to properly document the
information.
And so we put them through the task and we can make technical
arguments that they didn't meet the
requirements under the law.
I'm Mike Scafiddi a retired police officer and now a
criminal defense attorney with Shouse Law Group.
If you or a loved one are in trouble and
need help, call me.