In California, can I be charged with 23152(b) if I refuse the BAC tests? 13 Answers as of March 24, 2011

I was arrested for DUI when I was super wasted, and I refused to take the drug test because I knew it was not going to be pretty. I know there are penalties for that, but I think I would have gotten them anyway. However, because I refused the tests, can I only be charged under Vehicle Code 23152(a) and not (b)? That one carries smaller penalties, right? Did I do the right thing, or can I still be charged with (b) on the assumption that I was over 0.08?

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Law Office of Peter F. Goldscheider
Law Office of Peter F. Goldscheider | Peter Goldscheider
Both counts are identical in punishment. The 23152(b) requires proof that you were above a .08. Without a blood test this will not be possible. On the other hand, by refusing the test the DA can get an instruction on the 23152(a) count at trial that the jury can use your refusal as evidence of consciousness of guilt. So you may have gained a little by not refusing but not much. In addition, your driving privilege in CA will be suspended for refusing to take the test.
Answer Applies to: California
Replied: 3/24/2011
Law Office of Marc K. Herbert
Law Office of Marc K. Herbert | Marc K. Herbert
Yes, you can be charged with driving under the influence, with a BAC reading, based on your statments, driving performance and the results of the Field Sobriety Tests.

Both charges (DUI and driving with BAC of .08% or higher) carry the same penalties. In your case, you may be subject to more jail, higher fines and a longer DUI program in Court, due to your refusal to provide a blood, breath or urine sample as required by California law.

Also, the DMV will probably suspend your driver's license for a full year, based on your refusal to provide a sample. The suspension can be challenged, if you request a DMV hearing within 10 days of your arrest.

If you have other questions about your case, please call my office.
Answer Applies to: California
Replied: 11/27/2010
The Law Office of Stacey Wolcott
The Law Office of Stacey Wolcott | Stacey Wolcott
As for a DUI only one of the charges you mentioned need to be proven. The District Attorney is
able to charge, to an extent, whatever they believe they can prove. I would be a matter of them proving the VC 23152(b) charge without the tests being done. However, both charges carry the same penalty. For a first time DUI you could potentially face up to 6 months in county jail. I would advise you that you should speak to an attorney about the possibility of a plea bargain. Feel free to give my office a call and schedule a free consultation.
Answer Applies to: California
Replied: 11/24/2010
Law Office of Thomas F. Mueller
Law Office of Thomas F. Mueller | Thomas Mueller
I do not have good news for you. Most counties in Calif. take the position that refusing a test is an admission of guilt and they prosecute under P.C.23152(a). There may be some wiggle room to plea bargain or even to win a trial. Your conclusion that 23152(a) is less serious is also faulty. The two code sections are the same from a punishment standpoint.

There is also some grim news on the licensing front. If the DMV finds that you were legally arrested, that the police had probable cause to believe you were drunk, that you were not mislead by the cop and you were properly advised, you will lose your privilege for a year. For more info or to retain our services call
Answer Applies to: California
Replied: 11/24/2010
The Law Offices of Robert L. Driessen
The Law Offices of Robert L. Driessen | Robert L. Driessen
Technically if they do not know what the results were they cannot charge you with the B count. However understand that there is mandatory jail time and increased license suspension due to a refusal enhancement. A refusal of the chemical test is usually a bad idea. I would recommend hiring an attorney to have the refusal allegation removed.
Answer Applies to: California
Replied: 11/23/2010
    Steven Mandell
    Steven Mandell | Law Offices of Steven Mandell
    As far as I'm concerned, you did the wrong thing by refusing, but they cannot charge you with the (b) count. But it doesn't matter, because the penalties for the (a) and the (b) are exactly the same.

    Bottom line: a refusal used to be a good idea, but the legislature has reversed that and a refusal comes with some pretty harsh penalties. Get a good lawyer and hope to avoid some of those harsh penalties.
    Answer Applies to: California
    Replied: 11/23/2010
    Law Office of Geoffrey M. Yaryan
    Law Office of Geoffrey M. Yaryan | Geoffrey M. Yaryan
    No, both 23152(a) and 23152(b) have exactly the same penalties. However, refusing to take a test results in a year suspension from DMV where taking the test results in only a 4 month suspension or 5 month restricted license if your blood alcohol level was .08 or above and you have no prior convictions within 10 years. If you had only drugs in your system and took a test then there would be no DMV suspension at all. You clearly did the wrong thing.
    Answer Applies to: California
    Replied: 11/23/2010
    The English Law Firm
    The English Law Firm | Robert English
    The VC 23152(a) count does not carry smaller penalties.
    Answer Applies to: California
    Replied: 11/23/2010
    Dennis Roberts, a P.C.
    Dennis Roberts, a P.C. | Dennis Roberts
    This was a really BAD idea and judges do not take kindly to it. Yes they can charge you with (a) and (b) and your penalties will be greatly increased. (a) and (b)carry the same penalties
    Answer Applies to: California
    Replied: 11/23/2010
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    You did not do yourself any great favor. Refusal WILL result in automatic one year loss of license.

    Refusal does not legally affect whether or not you are charged with basic DUI, only with driving with over .08. Without the test they cannot prove that. The officer will arrest you if he thinks he has evidence to do so, regardless of test.

    The proper questions are, can you be convicted, and what can you do? Defend the charges. Go to court, enter a not guilty plea, arrange bail reduction or OR, set up and attend the court hearing[s] and trial date[s]. File evidence suppression or other motions as applicable. Raise all the available defenses with whatever admissible and credible witnesses, evidence and facts are available for legal arguments for motions, plea bargaining, or at trial. Go to trial if it cannot be resolved with motions or a plea bargain. If you don't know how to do these things, then hire an attorney that does, who will try to get a decent outcome or plea bargain for you. If serious about doing so, feel free to contact me. I will be happy to help you use whatever defenses you may have. If you can't afford private counsel, apply for the Public Defender.

    Keep in mind: When you are arrested for DUI, upon release from jail or booking, you were given documents that included a notice from DMV that you have only ten days to file a request with DMV for a hearing on an appeal of the automatic one-year suspension of your license. Contact DMV and do so, timely, then appear at your scheduled hearing and present your evidence and testimony. If you do not know how to do these things, then hire an attorney that does.
    Answer Applies to: California
    Replied: 11/23/2010
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Usually they will only charge you with the (a) count. With the limited information I have, I would say you did the right thing, because refusal cases are generally more defensible cases at trial, but initially most prosecutors will be asking for more. The DMV consequences are also more severe with a refusal. Contact a DUI specialist to help you out.
    Answer Applies to: California
    Replied: 11/23/2010
    Law Offices of Phil Hache
    Law Offices of Phil Hache | Phil Hache
    Generally for refusals, they only charge the 23152(a) charge. The potential penalties for both 23152(a) and 23152(b) are the same. Additionally, there are what is called "enhancement" penalties if the refusal charge sticks (ie. Refusal charges carry their own penalties above the normal 23152(a) and (b) charges. I would recommend hiring a lawyer. Call me at (818) 336-1384 if you would like a free consultation to discuss your case in further detail.
    Answer Applies to: California
    Replied: 11/23/2010
    Law Office of Joe Dane
    Law Office of Joe Dane | Joe Dane
    If you are lawfully arrested for DUI, you are required to submit to a chemical test. If you choose breath and the officer suspects that you're under the influence of drugs, they can also request a blood sample. If you refuse, they can use reasonable force and get blood from you anyway.

    The 23152(b) must be based on proof of your blood alcohol level. Without a chemical test putting you at or above 0.08% at the time of driving, they will not be able to go forward on that charge.

    The two different charges - 23152(a) - driving under the influence and 23152(b) - driving with 0.08% or more both carry the same exact punishment and count just the same on your record.

    By refusing, the DMV can now suspend your license and the DA can add a refusal enhancement against you, potentially increasing your punishment.
    Answer Applies to: California
    Replied: 11/23/2010
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