A DUI arrest is already stressful, but being accused of refusing a chemical test—breath or blood—can make the situation feel significantly more serious. In California, a “refusal” allegation can trigger separate DMV consequences and can also be used by prosecutors to argue you had something to hide, even though that framing doesn’t prove the legal elements of the charge.
If you’re dealing with a Vehicle Code 23612 (VC 23612) refusal allegation anywhere in Southern California, there are two things you need to understand quickly. First, not every situation that looks like a refusal is legally a refusal, and the details of what was said, offered, and documented can matter. Second, the DMV timeline often moves fast, and missing deadlines can cost you your ability to challenge a license suspension while the case is pending.
What Is a DUI “Chemical Test Refusal” in California?
California has an implied consent rule. In plain English, if you drive in California, the law treats you as having already agreed that if you’re lawfully arrested for DUI, you must submit to a chemical test. Depending on the circumstances, that chemical testing is used to measure alcohol (typically breath or blood) and, in some situations, drugs (commonly blood, and sometimes urine depending on how the investigation is handled).
A “refusal” allegation can come from more than just saying “no.” It may also be based on delaying or stalling until the test is treated as a non-completed attempt, refusing to choose a test when a choice is offered, or putting conditions on testing—such as insisting on a lawyer being present before you’ll take the test. The important point is that refusal cases are often highly fact-specific, and small details can matter a lot: what the officer actually said, what was explained, what options were offered, what you did or didn’t do, and whether the arrest itself was lawful.
This page and website provide general information in plain English, not legal advice. Laws and local court/DMV practices vary and can change, so don’t rely on this content for your case—talk to a qualified attorney promptly to review your specific facts, especially if you face charges, a DMV action, or a deadline. In many cases, you’re fighting two battles at once: the DMV process and the criminal court case.
PAS vs. Post-Arrest Chemical Tests: What You Can Refuse (and What You Can’t)
One of the biggest sources of confusion in refusal cases is the difference between a PAS test and a post-arrest chemical test, because they happen at different stages and can carry different consequences.
Preliminary Alcohol Screening (PAS) test
The PAS is typically a handheld breath device used as an investigative tool during the roadside phase of a DUI stop. It’s often treated as part of the officer’s field investigation, and many refusal disputes start here because drivers reasonably believe “breath test” means one thing—when the officer may later claim they were refusing something else.
Post-arrest chemical test (breath/blood/urine)
The post-arrest chemical test is the one tied to implied consent once you are lawfully arrested for DUI. Refusing this post-arrest test is what typically triggers the VC 23612 refusal allegation and the separate DMV process. This distinction matters because many “refusal” claims are really misunderstandings about which test was being requested, when it was requested, and what the driver was actually being asked to do at that moment.
California’s Implied Consent Law (VC 23612) Explained
Vehicle Code 23612 is California’s “implied consent” law. In plain terms, it says that if you drive in California and you’re lawfully arrested for a DUI-related offense, you’re deemed to have already consented to chemical testing. That includes blood or breath testing for alcohol, and blood testing for drugs (with urine testing addressed if a blood test isn’t available).
The statute also builds in a framework that matters in real refusal cases. Testing must be incidental to a lawful arrest and done at an officer’s direction when the officer has reasonable cause to believe you were driving under the DUI statutes. If the arrest is for alcohol DUI, you generally must be advised that you have a choice between breath or blood. If drug impairment (or drugs + alcohol) is suspected, the code addresses additional testing scenarios—including situations where an officer may request a blood test even after a breath test, and the officer is supposed to document the basis for that request.
These details matter because many “refusal” allegations come down to whether the officer followed the required steps—what test was offered, what choices were given, what was explained, and whether the process was handled correctly from the start.
What Officers Must Tell You Before Calling It a “Refusal”
A refusal allegation isn’t just about what you did—it’s also about what you were told. VC 23612 requires officers to advise drivers about key consequences before treating the situation as a refusal, including that failing to submit to or complete required testing can lead to a fine and mandatory imprisonment if convicted of VC 23152 or 23153.
The statute also requires advisements about DMV consequences, including a one-year suspension for a refusal, and longer revocation periods in certain prior-related situations. And officers must advise that you do not have the right to have an attorney present before deciding or during the test, and that a refusal may be used against you in court.
When those warnings aren’t properly given—or the facts show confusion, language barriers, or incomplete advisements—that can become a major issue in both the DMV case and the criminal case.
Criminal Court Consequences: “Refusal Enhancement” and How It’s Used
On the criminal side, prosecutors often treat refusal as an aggravating fact and argue it as “consciousness of guilt.” California’s DUI jury instructions include CALCRIM 2130, which allows jurors to consider an alleged refusal as awareness of guilt, while also making clear that refusal evidence alone can’t prove guilt by itself.
In practice, the defense often focuses on why the situation isn’t a true legal refusal, whether the officer’s advisements and process were properly handled, and why the state’s interpretation is unreliable—especially when the evidence shows confusion, unclear instructions, or documentation problems.
What Counts as a “Refusal”? Silence, Conditions, and Failure to Complete
People are often surprised by what can be treated as a refusal in the real world, because a refusal allegation isn’t always based on a clear, spoken “no.” Depending on the facts and what the officer documents, a refusal claim may be based on silence or non-responsiveness when a post-arrest test is requested, on “conditional consent” (for example, agreeing only if certain conditions are met), or on a claimed failure to complete the test—such as starting and then stopping, or allegedly not providing an adequate sample. In some scenarios discussed in case law summaries, disputes also arise when a driver initially selects one test but does not complete it and then declines an alternate test that is later offered.
The practical takeaway is that refusal allegations often turn on details: what you were asked to do, what choices you were given, what you did in response, and how the situation was explained and recorded.
Limits on Refusal Allegations
The law also recognizes limits that can matter in the right case. For example, Vehicle Code 23612 states that a person who is unconscious or otherwise incapable of refusal is deemed not to have withdrawn consent, and testing may be administered. Just as important, implied consent testing is tied to a lawful-arrest framework and required advisements, which is why factual issues like confusion, language barriers, and incomplete or unclear warnings can become central in both the DMV case and the criminal case.
DMV Consequences for Refusal (VC 13353): Suspension, Revocation, Timeline
A refusal allegation can trigger an Administrative Per Se (APS) action through the DMV, separate from what happens in criminal court. Under Vehicle Code 13353, if the DMV determines you refused (or failed to complete) a chemical test after an officer’s request under implied consent, the DMV is directed to impose serious license action—often one year for a typical first refusal, two years if the refusal occurs within 10 years of certain prior DUI-related convictions or prior administrative actions, and three years in certain multiple-prior situations.
In many cases, the DMV’s APS order becomes effective on a short timeline after you’re served with notice, which is why acting quickly matters.
The DMV Hearing Deadline
The DMV’s own guidance explains that hearings must be requested within 10 days of receiving notice (or 14 days from the date of the notice if it was mailed), or you can forfeit hearing rights—and it also emphasizes the DMV process is separate from the criminal case.
Defenses to VC 23612 Refusal Allegations
A strong refusal defense is detailed and evidence-driven. The goal is to break down what actually happened step by step—what the officer requested, what warnings were given, what you understood, what you did, and what the paperwork claims—because refusal cases often turn on small but critical details.
The Arrest Wasn’t Lawful / No Reasonable Cause
Implied consent testing is tied to a lawful arrest and the officer having reasonable cause. If the stop, detention, DUI investigation, or arrest foundation is questionable, that can affect the refusal allegation because the entire implied-consent framework depends on the arrest being lawful and properly supported.
The Officer Didn’t Properly Advise You of Consequences
VC 23612 spells out what a person “shall be told,” including license consequences and that refusal may be used against you. When the advisements are incomplete, unclear, rushed, or not properly documented, that can become a meaningful issue—especially in the DMV case where the process and warnings matter.
It Wasn’t a True Refusal (Confusion, Misunderstanding, Communication)
Many refusal disputes are factual rather than dramatic. The defense may focus on whether the request was clearly made, whether the choice of tests was clearly explained, whether a language issue or communication barrier existed, and whether the person was confused between a roadside PAS request and a post-arrest chemical test request. In these cases, what the officer wrote down is not always the same as what was actually understood in the moment.
Medical or Physical Inability to Complete
Refusal law often collides with real-world limitations—injury, shock, breathing issues, medical conditions, or the practical inability to complete a test the way the officer demanded. When the facts show incapacity or a legitimate inability to complete testing, the defense can challenge whether it should be treated as a willful refusal at all, and whether the officer followed the correct procedures for the situation.
Documentation Problems
Refusal cases are paper-heavy, and the paperwork is often the battleground. The officer’s sworn statement, the exact admonition wording, the timing, and how the refusal was recorded can all be challenged—particularly at the DMV hearing, where specific statutory issues are reviewed and the record has to support the DMV action.
What to Do After a Refusal Allegation
If you or a family member is facing a refusal allegation, act quickly on DMV deadlines because losing the hearing right can lead to an automatic suspension or revocation before the court case is resolved. Preserve every piece of paperwork you have—especially the notice/pink sheet and any hospital, tow, or release documents—because refusal cases often turn on the exact wording and documentation. Write down your timeline while it’s still fresh, from the stop to the arrest to the testing request and exactly what was said, because memory fades fast and the case can hinge on small details. And avoid casually “explaining” the situation to others, since refusal cases can become disputes about precise statements, timing, and what you understood in the moment.
What to Do After an Arrest
If your arrest is recent, acting quickly can protect both your defense and your driver’s license, especially if DMV action applies. Speaking with a DUI defense attorney early allows your lawyer to identify deadlines, preserve evidence, and shape the strategy before the state’s narrative hardens.
It also helps to write down your full timeline while it’s still fresh. That includes when you drank, when you used medication or cannabis, when you drove, when you were stopped, and when any breath, blood, or other tests occurred, because combined DUI cases often turn on timing and context. If medication is involved, preserve proof by keeping pharmacy records, prescription labels, and dosing instructions, since lawful use and dosage details can become important in understanding what the evidence does—and does not—prove.
Just as important, do not “explain” your case to anyone else. Statements can be misunderstood, repeated, or taken out of context, so it’s better to let your attorney guide what should and shouldn’t be said. Finally, gather medical context early if a condition could explain symptoms the officer attributed to impairment, because documentation created close in time to the arrest can be far more helpful than trying to reconstruct it later.
VC 23612 Refusal FAQs
Can I refuse the handheld breath test on the roadside?
PAS is treated as a field sobriety test and the code discusses advisements including the right to refuse the PAS in that investigative context.
Post-arrest chemical testing is different.
Can refusal be used against me in court?
Yes—VC 23612 includes an advisement that refusal may be used against a person in court.
And jury instructions allow refusal evidence to be argued as “consciousness of guilt,” while also stating it can’t prove guilt by itself.
Do I get to talk to a lawyer before deciding on breath or blood?
VC 23612 states the officer shall advise that you do not have the right to have an attorney present before stating whether you will submit, before deciding which test to take, or during administration.
How long is the DMV suspension for refusal?
VC 13353 provides a one-year suspension for refusal and longer revocations in certain prior-related situations.