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  #41  
Old 07-07-2013, 10:41 PM
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I also seem to remember that there is a requirement for minors (under 21) to submit to the PAS in the field, and if refused would also lead to a license suspension.......
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  #42  
Old 07-07-2013, 10:42 PM
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Quote:
Originally Posted by KIMBER8400 View Post
I do thank you for your expansive explanation.
The purpose of this thread was not to find a way to circumvent the law or find a way to drink and drive or get a lighter sentence etc...
The purpose of this thread is a really narrow one.
Whether or not a driver's license is automatically suspended for refusing to take any test absent arrest.
I dont think in the last thread he was trying to say it will be automatically suspended, I think he was trying to inform people that a refusal would result in an arrest anyway and the DMV does not look kindly on people refusing and it could result in additional DL suspensions or provisions, maybe it just didnt get conveyed the right way or got lost in all the bashing. And as it states in the DMV handbook that even if you ask to take it after the fact the initial refusal still stands with the DMV
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  #43  
Old 07-07-2013, 10:49 PM
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Quote:
Originally Posted by Tacobandit View Post
I dont think in the last thread he was trying to say it will be automatically suspended, I think he was trying to inform people that a refusal would result in an arrest anyway and the DMV does not look kindly on people refusing and it could result in additional DL suspensions or provisions, maybe it just didnt get conveyed the right way or got lost in all the bashing. And as it states in the DMV handbook that even if you ask to take it after the fact the initial refusal still stands with the DMV
Well, since the other thread is closed. I think bringing the closed thread to this one would defeat the purpose of closing the thread.
However I do remember the words, "automatic suspension" were used.
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  #44  
Old 07-07-2013, 11:05 PM
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/thread. @ Page 1

now we need to find out what got that case dismissed for obstruction.
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  #45  
Old 07-07-2013, 11:37 PM
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Every person I encountered that refused the FSTs ended up going to jail, booked, and was required to take a chemical test. If they refused, I just made better notes in my report. We didn't have the PAS devices back then. I had a 100% conviction rate on refusals that went to jury trial.

Just remember this, if you are uncooperative with the officer, he is going to remember you more that the guy who goes with the flow. He will make better notes and be more detailed in his report.

My department only did forced blood draws on felony DUI cases.

Your call, but a lot of people I stopped that did FSTs were able to convince me that they were OK to drive and were sent on their way.
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  #46  
Old 07-08-2013, 3:24 AM
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If you refuse to participate in any SFST's prior to an arrest and the LEO determines they don't/won't arrest you, you can also be served with a DMV Reexamination Form. One of the checkboxes on the form is for "alcohol/drug use." If either through the reexamination process or your failure to comply with the process your license can be suspended.
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  #47  
Old 07-08-2013, 6:39 AM
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Quote:
Originally Posted by KIMBER8400 View Post
So to sum up,
is it safe to say that based on the practice, one's driver's license will not be automatically suspended for refusing to take any test absent arrest?
One could submit a driver re exam form to DMV under circumstances with no arrest.

Lol as I typed this I saw the above post.... facepalm
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  #48  
Old 07-08-2013, 8:26 AM
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From my experience, FST'S optional but if you fail to take any field tests, the burden of proof is on you in court to prove you were not impaired.

Implied consent, if you are arrested for DUI you MUST give blood or breath. You signed a piece of paper at the dmv to get your license stating you consent to a chemical test if arrested.
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  #49  
Old 07-08-2013, 8:41 AM
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Quote:
Originally Posted by Galli1565 View Post
From my experience, FST'S optional but if you fail to take any field tests, the burden of proof is on you in court to prove you were not impaired.

Implied consent, if you are arrested for DUI you MUST give blood or breath. You signed a piece of paper at the dmv to get your license stating you consent to a chemical test if arrested.
The emphasis is on "if arrested"
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  #50  
Old 07-08-2013, 9:33 AM
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Quote:
Originally Posted by KIMBER8400 View Post
The emphasis is on "if arrested"
I dont think anyone is trying to deny that or refuting the law about it but merely stating that if you refuse the FST you will be screwed and the officer has other means to let the dmv know about your refusal which could lead to longer suspension/restrictions. Like if you cooperate you coukd get a shorter suspension or even a restricted status but if the officer puts down you refused the dmv will drop the hammer on you
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  #51  
Old 07-08-2013, 10:20 AM
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Quote:
Originally Posted by Galli1565 View Post
From my experience, FST'S optional but if you fail to take any field tests, the burden of proof is on you in court to prove you were not impaired.

Implied consent, if you are arrested for DUI you MUST give blood or breath. You signed a piece of paper at the dmv to get your license stating you consent to a chemical test if arrested.
Galli,

There is no shifting of the burden of proof when a person refuses to perform FSTs in the field. That refusal can be used to show a consciousness of guilt and that would certainly help the prosecution prove their case.

To go back to the OP's original question, the law does not provide an avenue to suspend a person's license only because they refuse FSTs in the field.

BUT, a refusal to perform FSTs in the field would likely lead to an arrest and that would trigger a requirement to complete a chemical test. The refusal to complete that test would lead to a suspension.
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  #52  
Old 07-08-2013, 11:14 AM
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Quote:
Originally Posted by RickD427 View Post
Galli,

There is no shifting of the burden of proof when a person refuses to perform FSTs in the field. That refusal can be used to show a consciousness of guilt and that would certainly help the prosecution prove their case.

To go back to the OP's original question, the law does not provide an avenue to suspend a person's license only because they refuse FSTs in the field.

BUT, a refusal to perform FSTs in the field would likely lead to an arrest and that would trigger a requirement to complete a chemical test. The refusal to complete that test would lead to a suspension.

So to go beyond the OPs question..

Once arrested , you are now required to submit to a chemical test of your choosing, Denial of doing required test would result in at least a one year suspension up to three year revoking of your license to operate a motor vehicle.

Now to expand on that.. once you perform the required chemical test... blood obviously takes longer.. Breath test is pretty immediate and you do blow zero.. are you then released or can you now be charged with obstruction?
I know there are so many hypotheticals here. And the chance that someone who was not impaired even being arrested would be very slim BUT say it happens , they blow, .0000 after arrest.

What is next?
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  #53  
Old 07-08-2013, 11:34 AM
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Quote:
Originally Posted by Ninety View Post
So to go beyond the OPs question..

Once arrested , you are now required to submit to a chemical test of your choosing, Denial of doing required test would result in at least a one year suspension up to three year revoking of your license to operate a motor vehicle.

Now to expand on that.. once you perform the required chemical test... blood obviously takes longer.. Breath test is pretty immediate and you do blow zero.. are you then released or can you now be charged with obstruction?
I know there are so many hypotheticals here. And the chance that someone who was not impaired even being arrested would be very slim BUT say it happens , they blow, .0000 after arrest.

What is next?
Why obstruction, if the pre arrest test is not mandatory, but optional.
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  #54  
Old 07-08-2013, 12:02 PM
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http://dmv.ca.gov/pubs/vctop/appndxa...o/penco148.htm

Quote:
148. (a) (1) Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.
Just asking what happens next.. maybe I am completely wrong. I'm not sure why one would be charged with it . But watching a couple of cases out of NV made me bring it up. And the Video of the UC thread.
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  #55  
Old 07-08-2013, 12:45 PM
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Please share the cases and/or videos showing someone get charged with 148 for simply blowing a 0 on a breath test...
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  #56  
Old 07-08-2013, 1:02 PM
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I was just elaborating for Kimber

That was not why they were charged or threatened with the charge. It was a window thing.
@dui checkpoint.
Can you roll down you window please.
no thanks
roll down your window or I'm breaking it and charging you with obstruction.
roll down 6 inches

not enough so removed from vehicle , detained. Refuses FSTs untill threatened with arrest and then takes PBT .0000 charged with obstruction for
not rolling down window when requested
not performing FSTs
not answering questions


guilty
not guilty on appeal thru it seems some technicality...

The reason I asked is b/c all officers involved including detective that gave the direction to cite for 148 included the refusal to perform FSTs and answer questions as the reason for the charge. Not the refusal to roll the window down by itself
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  #57  
Old 07-08-2013, 1:38 PM
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Very different than:

"Breath test is pretty immediate and you do blow zero.. are you then released or can you now be charged with obstruction?"
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  #58  
Old 07-08-2013, 1:49 PM
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Quote:
Originally Posted by Ninety View Post
So to go beyond the OPs question..

Once arrested , you are now required to submit to a chemical test of your choosing, Denial of doing required test would result in at least a one year suspension up to three year revoking of your license to operate a motor vehicle.

Now to expand on that.. once you perform the required chemical test... blood obviously takes longer.. Breath test is pretty immediate and you do blow zero.. are you then released or can you now be charged with obstruction?
I know there are so many hypotheticals here. And the chance that someone who was not impaired even being arrested would be very slim BUT say it happens , they blow, .0000 after arrest.

What is next?
Ninety,

A driver arrested for DUI starts off with a choice of a blood or breath test. If the officer suspects drug intoxication, the officer can also require the blood test irrespective of the breath test.

If the driver blows zero, as in your question, the officer has two options: 1) The officer can charge DUI alleging drug intoxication. The driver may have needle marks and constricted pupils or other signs of drug impairment. We may find prescription medications in the car containing the "drowsiness" warning. 2) If there is insufficient evidence to show drug intoxication, then we transport the driver back to his vehicle, thank him for his time, suggest the FST could have avoided all the drama, and send him on his way. The "arrest" turns into a "detention only" under PC 849.

Realistically, a driver is not going to stay in jail any longer if they opt for the blood test. Simple DUI is a misdemeanor and nearly all arrestees will qualify for a release on a citation. They'll wait at home until the test results are known and a filing decision is made. We'll just find out sooner with a breath test, but that only works when the sole suspected intoxicant is alcohol.

There are two groups of folks that are required by law to submit to FSTs. Those folks can have their licenses suspended if they fail to comply. Those are drivers under the age of 21 and those who have prior DUI convictions.

These are the only folks that are at risk for a 148PC arrest if they fail to perform FSTs. I don't see a basis for a 148 arrest if other persons refuse to complete the test. There is quite a bit of case law concerning what is, and is not, a violation of 148PC. At the risk of over-simplifying that body of law, you either have to do something that interferes with an officer's performance of duty, or refuse to do something that you're required to do, and that interferes with an officer's performance of duty. There is no violation of 148 PC when a person refuses to do something they're not required to do.
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  #59  
Old 07-08-2013, 3:22 PM
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...

Last edited by Coolguy101; 02-14-2014 at 9:38 AM..
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  #60  
Old 07-08-2013, 3:24 PM
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Quote:
Originally Posted by gogohopper View Post
Good question. Never saw it discussed here before.
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  #61  
Old 07-08-2013, 3:37 PM
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I never heard of anyone being charged with 148 PC for refusing the FST's or the chemical test...

There is no legal requirement to preform the FST... So you can't be penalized for not doing something you are not required to do...

The legal consequence of refusing the chemical test AFTER arrest is a license suspension.....Not a charge of interfering...
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  #62  
Old 07-08-2013, 3:41 PM
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To add to Taco's question from page one....

It's important to understand that if I ask someone to do FSTs, there is a REASON. I don't do FSTs just because I feel like it. So if I have reason to believe someone is impaired, and they refuse FSTs, yes, they get arrested. Understand that FSTs are simply an opportunity to evaluate the degree of impairement of an individual. There are dozens of people who, after doing my FSTs, were clearly not impaired. They of course didn't get arrested once I was able to clearly see a lack of impairement.
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Old 07-08-2013, 3:46 PM
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Quote:
Originally Posted by SVT-40 View Post
I also seem to remember that there is a requirement for minors (under 21) to submit to the PAS in the field, and if refused would also lead to a license suspension.......
Found it...

Here is a link

http://www.dmv.ca.gov/pubs/brochures...cts/ffdl36.htm

" California Vehicle Code (CVC) 23136, PAS Persons Under 21: Preliminary Screening Device, established strict Zero Tolerance requirements and penalties for drivers under 21 years of age. The DMV is required to suspend or revoke the driving privilege of any person under age 21 who was detained and/or arrested for driving under the influence (DUI) of alcohol, or a combination of alcohol and drugs, who:

Takes a Preliminary Alcohol Screening (PAS) test, or a chemical test (blood or breath test) with a Blood Alcohol Concentration (BAC) level of 0.01% or more, or
Refuses to take, or fails to complete, a PAS or other chemical test.
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Old 07-08-2013, 3:50 PM
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Refusing to take the FST actually makes the processing of the arrest that much easier.
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  #65  
Old 07-08-2013, 4:09 PM
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Quote:
Originally Posted by Ninety View Post
I was just elaborating for Kimber
My question was a very narrow one and it's already been answered.
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  #66  
Old 07-08-2013, 4:38 PM
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Kimber8400 Do you understand that if you are under 21 and refuse the roadside PAS BEFORE arrest your license will be suspended?....
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  #67  
Old 07-08-2013, 6:08 PM
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This comes up at work a lot. If you refuse then the we have to go on our observations and our observations alone
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  #68  
Old 07-08-2013, 6:32 PM
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Quote:
Originally Posted by SVT-40 View Post
Kimber8400 Do you understand that if you are under 21 and refuse the roadside PAS BEFORE arrest your license will be suspended?....
SVT, I wish I was 21 man.
But yeah that makes sense.
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Old 07-08-2013, 10:18 PM
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Quote:
Originally Posted by Ninety View Post
I was just elaborating for Kimber

That was not why they were charged or threatened with the charge. It was a window thing.
@dui checkpoint.
Can you roll down you window please.
no thanks
roll down your window or I'm breaking it and charging you with obstruction.
roll down 6 inches

not enough so removed from vehicle , detained. Refuses FSTs untill threatened with arrest and then takes PBT .0000 charged with obstruction for
not rolling down window when requested
not performing FSTs
not answering questions


guilty
not guilty on appeal thru it seems some technicality...

The reason I asked is b/c all officers involved including detective that gave the direction to cite for 148 included the refusal to perform FSTs and answer questions as the reason for the charge. Not the refusal to roll the window down by itself
The probable cause for the 148 has more to do with the detention at the check point rather than the DUI investigation itself. Remember 148 PC also includes delaying a PO. A DUI checkpoint has been ruled to be a legal detention by the Supreme Court, one of the only cases where a detention has been upheld with out individualized suspicion Spitz v michigan state police. Officers at a DUI check point are detaining people for the narrow scope of sobriety checks. The most direct and efficient, and least intrusive way to determine sobriety is talking to the driver and having them perform FSTs. Refusing to roll down your window and refusing FSTs pretty much leaves an officer's investigation dead in the water because he doesn't really have any other alternative method to check ones sobriety.

Remember as a citizen you are obligated by CA law to cooperate with the police during a detention, and by cooperate I mean obey lawful orders given to you such as roll down your windows and I need you to do a few FSTs for me please. Not doing so could be grounds for 148, but it really depends on the specifics on a case by case basis. If you have been detained by the police, it is really in your best interest to cooperate. I know there are plenty that will disagree with that so take it for what it's worth.
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Old 07-08-2013, 10:19 PM
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Quote:
Originally Posted by tyrist View Post
Refusing to take the FST actually makes the processing of the arrest that much easier.
+1.
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  #71  
Old 07-09-2013, 12:54 AM
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Quote:
Originally Posted by SquareLite View Post
A refusal will lead to a forced blood draw.

.
Not without a search warrant.
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Old 07-09-2013, 5:02 AM
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Quote:
Originally Posted by Patrick Aherne View Post
Not without a search warrant.
I've had several people refuse the chemical test since the new ruling came out. Those people got a free ride to county jail. The ones who go along with the program get cited out at the station. The nice ones might not even get their cars towed.
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