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Vehicle Code 23612 VC – DUI Chemical Test Refusal Penalty

By Spodek Law Group | February 13, 2023

Refusal Enhancement: A Serious Offense in California DUI Law

Definition and Elements of the Offense

Driving under the influence (DUI) is a serious offense in California and refusing a chemical test when suspected of DUI can lead to severe consequences. According to California’s implied consent law, every driver arrested on suspicion of DUI must submit to chemical testing. However, if the driver refuses to take the test, they can still be charged with DUI, but they will also be subjected to the refusal enhancement under California Vehicle Code Section 23612 VC. This enhancement can increase the penalties imposed for any conviction.

For this enhancement to apply, the prosecution must prove the following supplemental elements to those required for the underlying DUI charge:

The arresting officer requested the driver to submit to a chemical test to determine their blood alcohol content or the presence of drugs.
The officer fully informed the driver of the requirement to submit to the test and the consequences of refusal.
The driver willfully refused to submit to the test.
The officer lawfully arrested the driver and had reasonable cause to believe that the driver was driving under the influence of alcohol or drugs.
To fully advise the driver, the officer must provide the following information:

The driver may choose between a breath or blood test and may be required to submit to blood testing if drugs are involved.
The driver does not have the right to an attorney’s presence while deciding whether or not to take the test.
Refusal to submit to the test may be used against the driver in court.
Refusing to take the test will result in a fine and mandatory imprisonment if convicted of DUI.
Failure to submit to the test will result in an automatic driver’s license suspension of one year or a revocation of driving privileges for two or three years.
Submitting to the Preliminary Alcohol Screening (PAS) test does not satisfy the driver’s requirement to submit to chemical testing, and it would not prevent a subsequent refusal enhancement. The officer must ensure that the driver comprehends the admonition. If the driver’s conduct or intoxication prevents understanding, they would still be held responsible for any subsequent refusal.

However, when the driver cannot understand the admonition or take the test due to factors outside of their control, they cannot be penalized for refusal.

Besides the refusal enhancement, other similar DUI offenses in California include:

Driving Under the Influence of Alcohol and/or Drugs – California Vehicle Code Section 23152(a) VC
Driving with a Blood Alcohol Content of 0.08 Percent or Higher – California Vehicle Code Section 23152(b) VC
DUI Causing Injury – California Vehicle Code Section 23153 VC


For instance, suppose a man is stopped by police after committing several Vehicle Code violations while driving. In that case, he fails all field sobriety tests and provides a Preliminary Alcohol Screening (PAS) test with a blood alcohol content (BAC) over 0.20 percent. If he is too intoxicated to understand the DUI admonishment and refuses to take the test, he could still be charged with DUI and face the refusal enhancement penalties. His incapability to understand the admonishment because of his high level of intoxication would not be a valid defense. Furthermore, submitting to testing on the PAS device would not satisfy his obligation to submit to chemical testing under California’s implied consent laws.

Defenses to the Refusal Enhancement

If the driver cannot hear or understand the admonishment because of factors beyond their control, such as external noise or unconsciousness, the refusal enhancement would not apply.

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