DUI Test Refusal
A traffic stop for an alleged DUI is a stressful and difficult situation for anyone, no matter if they are under the influence or not. Law enforcement will make sure that anyone they suspect to be under the influence of drugs or alcohol is sent to jail. After the arrest the officer will ask you to submit to a chemical test, usually a breath test, which estimates alcohol content in your breath or blood.
If you refuse to submit to the chemical testing, then additional admistrative penalties can apply in addition to the consequences of the DUI criminal charges. Many people wonder whether they did the right thing by taking the chemical testing or refusing the chemical testing. Although refusing to take the breath or blood test may carry additional administrative penalties, the advantage of not taking the chemical test is that the prosecutor does not have the one piece of evidence that is most persuasive wit the jury – the breath or blood test result.
With a strong understanding of Utah’s stance on DUI Test Refusal you can either make the right choice if ever presented with this situation, or, if you have already refuse a test, then you can solidify your comprehension of how the alleged refusal might impact the way you fight the DUI charges.
Salt Lake City DUI Test Refusal Attorney
With an issue such as a DUI test refusal, having capable legal counsel is vital for the reason that, because of implied consent and your apparent lack of cooperation in the process, Utah can prove to be very harsh on alleged offenders. A knowledgeable DUI defense attorney can navigate the complex administrative process while defending you if the issue ever goes to court.
Darren Levitt, of Levitt Legal, PLLC is an experienced and aggressive Salt Lake City criminal defense attorney who is committed to providing excellent client service while making sure that your individual rights are fully protected. This dedication to the client and prior trial experience has given him the focus and insight to develop an effective defense strategy that puts you in a position to get the charges reduced, or possibly dismissed.
If you or a loved one is dealing with a DUI test refusal charge, then call Levitt Legal at (801) 455-1743 to schedule a free and confidential consultation to discuss the specifics of your case. Darren Levitt proudly represents individuals dealing with DUI charges in and around the greater Salt Lake City area including the following counties: Box Elder County, Salt Lake County, Tooele County, Utah County, Morgan County, Cache County, Weber County, Summit County, Davis County and Wasatch County, Utah.
Under Utah’s implied consent statute, a person who operates a motor vehicle is presumed to have consented to a chemical test for purposes of determining whether that person had a Breath or Blood Alcohol Concentration (BAC) at or above the limits proscribed by Utah’s DUI statute. See id. § 41–6a–520(1)(a)–(c); State v. Sterger, 808 P.2d 122, 127 n. 6 (Utah Ct.App.1991).
A person operating a motor vehicle in Utah is considered to have given consent to a chemical test of the person’s breath, blood, urine, or oral fluids for the purpose of determining whether the person was operating or in actual physical control of a motor vehicle while:
- Over the legal limit;
- Under the influence of alcohol, any drug or combination; or
- Having any measurable controlled substance or metabolite of a controlled substance in the person’s body.
A peace officer requesting a test shall warn a person that refusal to submit to the test may result in revocation of the person’s driver’s license, a five or ten year prohibition of driving with any measurable or detectable amount of alcohol in the person’s body, and a three-year prohibition of driving without an ignition interlock device.
DUI Test Refusal under Utah Law
Persons who refuse chemical testing will be issued a notice of the Driver’s License Division’s intention to revoke the person’s privilege or license to operate a motor vehicle. The police officer will confiscate the person’s license and issue a temporary license certificate that will be effective for 29 days from the date of arrest.
Administrative Review Hearings after a DUI Refusal in Utah
A person who has been issued a notice of intention after a Utah DUI arrest is entitled to a hearing to contest the license revocation. The request for a hearing must be made in writing within 10 days after the notice of intention is issued.
The hearing will then take place within 29 days following the date of the person’s arrest. If no request for a hearing is made, the license revocation will go into effect on the 30th day following the date of the person’s arrest. The hearing will be conducted by the Driver License Division and will be held in the county in which the DUI offense occurred.
The administrative hearing is limited to the issues of whether a peace officer had reasonable grounds to believe that a person was operating a motor vehicle under the influence and whether the person refused to submit to the test or tests.
If the Driver License Division determines that the person was requested to submit to chemical testing and refused, or if the person fails to appear at the hearing, the Division will revoke the person’s driver’s license. Following a Division hearing, a Utah DUI offender may seek judicial review of the Division’s revocation, where a trial may be held. The penalty for a DUI test refusal for a first time offender will be an 18-month license suspension.
Rescinding the DUI Refusal
Utah law does not generally recognize a driver’s right to rescind his refusal to take a chemical test. However, if you refused and then agreed to take the test your attorney may be able to ask the court to exclude any mention of the alleged refusal at trial. The particular facts of your case including when the alleged refusal to submit to the DUI breath or blood test took place and when you changed your mind will determine the outcome.
Under Utah law, “[a] clear refusal then a subsequent change of mind is still a refusal.” See Whitehouse v. Schwendiman, 723 P.2d 1084, 1085 (Utah 1986) (per curiam). In Whitehouse the court stated that a request to test after several refusals and after the intoxilyzer was shut down was not an “immediate request” to test. In Baker v. Schwendiman, 714 P.2d 675, 677 (Utah 1986) the court stated that a request for a test fifteen to twenty minutes after refusal and after the intoxilyzer had been shut down did not rescind a refusal.
Utah Code Ann. § 41–6a–520(2)(b)(i) (Supp.2010), provides that if a person receiving the warning regarding refusal to test “does not immediately request that the chemical test or tests as offered by a peace officer be administered,” the officer shall give notice of the intention to revoke the person’s license. Additionally, Utah Code section 41–6a–520(1)(d)(i) states, “A person who has been requested under this section to submit to a chemical test or tests of the person’s breath, blood, or urine, or oral fluids may not select the test or tests to be administered.” Id. § 41–6a–520(1)(d)(i). Finally, Utah Code Ann. § 41–6a–520(1)(d)(ii) provides that “the failure or inability of a police officer to arrange for any specific chemical test is not a defense to taking a test requested by a police officer” in either the administrative proceeding or a trial de novo.
Levitt Legal, PLLC | Salt Lake City DUI Test Refusal Arrest Lawyer
Dealing with a DUI test refusal can be a difficult and complicated situation. Having criminal defense lawyer arguing your case will give you a much better opportunity at getting the charges reduced or dismissed.
If you need to speak with an attorney about a DUI Test Refusal charge, call Levitt Legal at (801) 455-1743 or send an online message to schedule a risk-free consultation with Darren Levitt to go over your case in detail.
Darren proudly represents individuals throughout the greater Salt Lake City region, including the cities of Tremonton, Brigham City, Mantua, West Valley City, West Jordan, Draper, Taylorsville, Tooele, Grantsville, Provo, Payson, Vineyard, Logan, Wellville, Nibley, Marriot-Slaterville, Uintah, Francis, Woods Cross, and Midway, among others.
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