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  #1  
Old 07-07-2013, 2:39 PM
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Lightbulb Whether driver's license will be suspended if refuse to take FST?

In a scenario where a driver is stopped and is asked to perform FST and before being arrested, the driver refuses; will his license be suspended for refusal to take the test before the arrest?
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  #2  
Old 07-07-2013, 3:06 PM
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http://www.dmv.ca.gov/pubs/brochures...cts/ffdl35.htm
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  #3  
Old 07-07-2013, 3:13 PM
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Good question. Never saw it discussed here before.
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  #4  
Old 07-07-2013, 3:18 PM
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Originally Posted by gogohopper View Post
Good question. Never saw it discussed here before.
It was extensively discussed in OT before.
However, there was a credibility issue and that is the reason I have made a new thread focused specifically on the issue, whether a driver refusing to take the FST before being arrested will have his license suspended.
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  #5  
Old 07-07-2013, 3:25 PM
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Quote:
Originally Posted by Samuelx View Post
Thank you very much Sir!
This is straight out of the above website:

The Department of Motor Vehicles (DMV) is required to suspend or revoke the driving privilege of any person arrested for driving under the influence (DUI) of alcohol or a combination of alcohol and drugs, who:

Takes a chemical (blood or breath) test which shows a blood alcohol concentration (BAC) level of 0.01% while on DUI probation, 0.04% while driving a commercial vehicle, and/or a 0.08% or more while driving a noncommercial vehicle, OR

Refuses to take or fails to complete a chemical test (blood or breath)* to determine his/ her BAC level

So just to clarify if any LEO can concur on this.
The DMV will suspend one's driver's license if the driver is (1) is arrested and (2) refuses to take the test...
Thus if not arrested but refuses, no suspension correct?
(not concerned about the higher BAC)
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  #6  
Old 07-07-2013, 4:32 PM
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1. FSTs/SFSTs (your original question) and breath/blood tests are NOT the same thing.
2. By the time you are required to take that breath/blood test, you would have already been arrested.
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  #7  
Old 07-07-2013, 4:39 PM
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You are not required to take any tests at all. You are required to take a chemical test. The PASD is not a chemical test. However, the Point of Arrest system is a chemical test and uses a PASD device Bluetoothed to the main unit which is a big yellow briefcase.


So no, you are not suspended if you refuse to take any sobriety tests. You are suspended if you refuse to take a breath or blood chemical test.

I have made a few arrests without tests due to refusal. But, you must write a very good and accurate report and paint an excellent picture of the drivers inability to operate a motor vehicle. Fall short and your asking for a dismissal.
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Old 07-07-2013, 4:49 PM
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Quote:
Originally Posted by Unit74 View Post
You are not required to take any tests at all. You are required to take a chemical test. The PASD is not a chemical test. However, the Point of Arrest system is a chemical test and uses a PASD device Bluetoothed to the main unit which is a big yellow briefcase.


So no, you are not suspended if you refuse to take any sobriety tests. You are suspended if you refuse to take a breath or blood chemical test.

I have made a few arrests without tests due to refusal. But, you must write a very good and accurate report and paint an excellent picture of the drivers inability to operate a motor vehicle. Fall short and your asking for a dismissal.
Ok, let me rephrase my question.
Is there any type of test that refusal of which will result in a suspension absent arrest?
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  #9  
Old 07-07-2013, 4:57 PM
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Quote:
Originally Posted by Samuelx View Post
1. FSTs/SFSTs (your original question) and breath/blood tests are NOT the same thing.
2. By the time you are required to take that breath/blood test, you would have already been arrested.
I guess the number 2 in your post coupled with Unit74's answer, answers my question.
You can only be asked to take breath/blood test when you are arrested and the refusal of these tests will result in suspension.
Therefore the refusal of any test prior arrest will not result in a suspension because a driver cannot be lawfully asked to take the breath or blood test without being arrested.
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  #10  
Old 07-07-2013, 5:38 PM
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On page 81 of the CA drivers test handbook states the DMV can take action against your driving priviledge if you are arrested OR detained. Then on 79 it says that " if an officer suspects you to be under the influence the officer can legally require you to take a blood or urine test. Drivers who refuse to take these tests are subject to longer suspensions and revocations. It also goes on to say that for an Admin per se requires arrest and refusal/fail to take tests. So it seems even the DMV is confused. It also says that refusal to submit to any tests your driving priviledge maybe suspended on page 84 under admin per se. However it also says for an admin per se it has to be concurrent with arrest. So it would appear the DMV could do it for both a flat refusal and for a refusal after arrest or the DMV is just confused also. It also states it is a seperate entity then the courts and can do its own thing.
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  #11  
Old 07-07-2013, 5:43 PM
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nobody likes playing the hokey pokey on the side of the road just do the portable breathalizer
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  #12  
Old 07-07-2013, 5:52 PM
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Quote:
Originally Posted by bohoki View Post
nobody likes playing the hokey pokey on the side of the road just don't drink and drive.

Fixed that.

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  #13  
Old 07-07-2013, 6:02 PM
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Quote:
Originally Posted by Tacobandit View Post
Then on 79 it says that " if an officer suspects you to be under the influence the officer can legally require you to take a blood or urine test. Drivers who refuse to take these tests are subject to longer suspensions and revocations.
I think the key word here is "subject to."
I don't think it means automatic suspension, but it means susceptible for longer suspension period provided that the driver is arrested. And this refusal will be used in Admin Per Se suspension to subject the driver for a longer suspension.
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  #14  
Old 07-07-2013, 6:04 PM
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Quote:
Originally Posted by Doheny View Post
Fixed that.

Oh no, that is not the point. I am not planing to drink and drive nor have I ever. It's just that I have came across some conflicting and incredible information so I thought I'd go to the source and clarify.
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Old 07-07-2013, 6:07 PM
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Quote:
Originally Posted by KIMBER8400 View Post
I think the key word here is "subject to."
I don't think it means automatic suspension, but it means susceptible for longer suspension period provided that the driver is arrested. And this refusal will be used in Admin Per Se suspension to subject the driver for a longer suspension.
Yes but then on 84 at the end states refusal to submit to any test your priviledge may be suspended so thats kind of a catch 22 that LEOs could use if a refusal occurs before arrest.
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  #16  
Old 07-07-2013, 6:15 PM
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Quote:
Originally Posted by KIMBER8400 View Post
Oh no, that is not the point. I am not planing to drink and drive nor have I ever. It's just that I have came across some conflicting and incredible information so I thought I'd go to the source and clarify.
Okay so lets play devils advocate. So you go out and have 3 beers with dinner over a 2 hour period and you get pulled over for say not signalling for a lane change the officer walks up and smells the odor of alcohol.

Officer; have you been drinking tonight?
You; yes sir 3 beers at dinner
Officer okay can you step out over here to the curb and perform a few tests for me?
You, am i under arrest.
Officer, depends on how you do on the tests.
You, sorry if i am not under arrest i refuse to participate.

What do you think the outcome will be?
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  #17  
Old 07-07-2013, 6:38 PM
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Quote:
Originally Posted by Tacobandit View Post
Yes but then on 84 at the end states refusal to submit to any test your priviledge may be suspended so thats kind of a catch 22 that LEOs could use if a refusal occurs before arrest.
I'm quite sure this is the point UC was making. See I didn't read him arguing the point everyone was making with the VC. He was pointing out in practice, LEOs have a loophole which he has knowledge of, and at least one other person had it happen to him. Everyone kept arguing the VC, but that's not the point he was trying to make. It's clear you need to be placed under arrest to legally be required to take the tests. That being said, DMV could still theoretically suspend your license if the cop filed the Admin Per Se paperwork after letting you go because you refused to take the test, and he didn't have enough evidence to arrest you. At least this is how I read the 14 page argument.

Last edited by retired; 07-08-2013 at 11:58 AM..
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  #18  
Old 07-07-2013, 6:44 PM
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Admin Per Se (DS367)/ license suspension will only take effect for a refusal to submit to a chemical test or a chemical test with a BAC above .08%. I have never heard of a chemical test prior to being arrested for DUI. Remember the field sobriety tests are also for the driver to prove that he is ok to drive and doesn't need to be arrested. Bottom line is don't drink and drive.
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  #19  
Old 07-07-2013, 7:24 PM
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Bottom line is don't drink and drive.
This isn't a debate on drinking and driving at all. It's purely a debate on law and contract.
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  #20  
Old 07-07-2013, 7:40 PM
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I'm not a LEO, so I won't attempt to answer the question, even though I'm sure I know what the correct answer is. I'll just throw out this interesting little quasi-related nugget from VC 23612 that I hadn't noticed before:

Quote:
(d) (1) A person lawfully arrested for an offense allegedly committed while the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153 may request the arresting officer to have a chemical test made of the arrested person’s blood or breath for the purpose of determining the alcoholic content of that person’s blood, and, if so requested, the arresting officer shall have the test performed.
If you weren't driving under the influence, but somehow end up getting arrested anyway, you can actually insist that they do give you a test. The blood test would be best in such a scenario as it is the most accurate, covers drugs and not just booze, and is repeatable (the blood can be tested again in the future if the state or the defendant wants to). Note that I said "insist" instead of "request" because the officer must honor your request and have the test performed.

Is that cool or what? There must have been a libertarian lurking in the legislature who threw that one in when no one was looking.
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  #21  
Old 07-07-2013, 7:48 PM
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The FST - Field Sobriety Test - is optional-participation.

Its purpose is to provide a standardized approach to evaluate the current physical capabilities of a person tested.
Quote:
The Standardized Field Sobriety Test (SFST) is a battery of three tests administered and evaluated in a standardized manner to obtain validated indicators of impairment and establish probable cause for arrest. These tests were developed as a result of research sponsored by the National Highway Traffic Safety Administration (NHTSA) and conducted by the Southern California Research Institute. A formal program of training was developed and is available through NHTSA to help law enforcement officers become more skillful at detecting DWI suspects, describing the behavior of these suspects, and presenting effective testimony in court.
http://www.nhtsa.gov/people/injury/a...appendix_a.htm

As already noted, if one is arrested for impaired driving, some blood-alcohol measurement is then no longer optional, on pain of a suspended license.
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Old 07-07-2013, 8:04 PM
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Quote:
Originally Posted by Tacobandit View Post
Okay so lets play devils advocate. So you go out and have 3 beers with dinner over a 2 hour period and you get pulled over for say not signalling for a lane change the officer walks up and smells the odor of alcohol.

Officer; have you been drinking tonight?
You; yes sir 3 beers at dinner
Officer okay can you step out over here to the curb and perform a few tests for me?
You, am i under arrest.
Officer, depends on how you do on the tests.
You, sorry if i am not under arrest i refuse to participate.

What do you think the outcome will be?
If my response, "yes sir 3 beers at dinner" rises to probable cause for arrest. then the officer should arrest and ask to perform the tests.
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Old 07-07-2013, 8:11 PM
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Quote:
Originally Posted by KIMBER8400 View Post
In a scenario where a driver is stopped and is asked to perform FST and before being arrested, the driver refuses; will his license be suspended for refusal to take the test before the arrest?
No the license will not be suspended for refusal of the FST.

If in some far reaches of reality the officer submits a suspension form for DMV consideration for refusal of FSTs and there is no arrest. DMV will set aside the suspension.

DMV only considers if there was cause for the contact/and if there was a legal arrest. Then, was there a refusal to submit to the chemical test.

DMV suspensions are a civil matter, not a criminal matter.
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Old 07-07-2013, 8:21 PM
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A refusal will lead to a forced blood draw.

If you are arrested and convicted of the DUI, then DMV will take their own actions and have you come in for a hearing. They can do a numbe of things to your license and they may or may not take into consideration the circumstances of your arrest. I've never been to a DMV hearing so I don't know. They may just look at the conviction. Don't know if they could access the report. DMV is weird.

You are going to have a hard time finding a LEO that can tell you what will happen after a DMV hearing. Punishment is not our jobs.
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Old 07-07-2013, 8:25 PM
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Quote:
Originally Posted by SquareLite View Post
A refusal will lead to a forced blood draw.

If you are arrested and convicted of the DUI, then DMV will take their own actions and have you come in for a hearing. They can do a numbe of things to your license and they may or may not take into consideration the circumstances of your arrest. I've never been to a DMV hearing so I don't know. They may just look at the conviction. Don't know if they could access the report. DMV is weird.

You are going to have a hard time finding a LEO that can tell you what will happen after a DMV hearing. Punishment is not our jobs.
The refusal will lead to forced blood draw, but only after arrest correct?
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  #26  
Old 07-07-2013, 8:26 PM
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Quote:
Originally Posted by Tacobandit View Post
Okay so lets play devils advocate. So you go out and have 3 beers with dinner over a 2 hour period and you get pulled over for say not signalling for a lane change the officer walks up and smells the odor of alcohol.

Officer; have you been drinking tonight?
You; yes sir 3 beers at dinner
Officer okay can you step out over here to the curb and perform a few tests for me?
You, am i under arrest.
Officer, depends on how you do on the tests.
You, sorry if i am not under arrest i refuse to participate.

What do you think the outcome will be?
It will be dependent on the the proficiency of the officer in identifying DUI's. After a number of years and training some officers become drug and alcohol influence experts.

While talking with drivers while they are seated behind the wheel officers will preform a Horizontal gaze nystagmus test on the driver.... This "test" will be done without the driver ever knowing they are being tested.... So even if they refuse any and all tests the officers can make a reasonable decision about their level of intoxication......

Horizontal gaze nystagmus is a very good gauge of blood alcohol level... Officers who are very experienced can evaluate a persons gaze nystagmus and usually be within .02% of what a physical test would show....

http://www.nhtsa.gov/people/injury/e...us/hgntxt.html


So based on the officers observations of the drivers physical symptoms of alcohol intoxication, his driving PLUS the information gained by seeing the drivers level of gaze nystagmus, the officer would have enough information to form a opinion as to whether the driver should be arrested.....

Now think about this... IF the driver then refuses to take the mandated alcohol test the driver will have ZERO evidence to support his claim that he was not intoxicated....

On the other hand the officer will have all the information gathered in his initial investigation, as well as a jury instruction which states that a refusal to take the mandated chemical test shows a "consciousness of guilt".

They can also depending on their expertise, be qualified as a expert in court and allowed to testify as a expert, and as such can give their opinion as to the sobreity of the driver.
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Last edited by SVT-40; 07-07-2013 at 8:33 PM..
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  #27  
Old 07-07-2013, 8:27 PM
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Quote:
Originally Posted by Spanky8601 View Post
No the license will not be suspended for refusal of the FST.

If in some far reaches of reality the officer submits a suspension form for DMV consideration for refusal of FSTs and there is no arrest. DMV will set aside the suspension.

DMV only considers if there was cause for the contact/and if there was a legal arrest. Then, was there a refusal to submit to the chemical test.

DMV suspensions are a civil matter, not a criminal matter.
Your answer was more or less what I have found based on my research of the VCs and case law.
I just wanted to clarify that there is no automatic suspension for refusing to take any test absent arrest.
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Old 07-07-2013, 8:40 PM
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Quote:
Originally Posted by socalsrt View Post
Admin Per Se (DS367)/ license suspension will only take effect for a refusal to submit to a chemical test or a chemical test with a BAC above .08%. I have never heard of a chemical test prior to being arrested for DUI. Remember the field sobriety tests are also for the driver to prove that he is ok to drive and doesn't need to be arrested. Bottom line is don't drink and drive.
Has any officer here or officer you know , ever filled out and sent in a (DS367) with out an arrest ? Is it even possible?
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Old 07-07-2013, 8:40 PM
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Not all refusals will result in a forced blood draw.. See this thread which was about this subject..

http://www.calguns.net/calgunforum/s...ced+blood+draw
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Old 07-07-2013, 8:42 PM
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Has any officer here or officer you know , ever filled out and sent in a (DS367) with out an arrest ? Is it even possible?
Without an arrest the form would not be applicable....
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Old 07-07-2013, 8:49 PM
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Quote:
Originally Posted by SVT-40 View Post
Without an arrest the form would not be applicable....
The form only goes to the DMV not to the courts and the arrest report does not go with it. Though I've never hear of the form being done on its own without an arrest
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Old 07-07-2013, 8:59 PM
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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?
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Old 07-07-2013, 9:05 PM
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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?
I would say its more a gray area as the DMV does throw in on page 84 that refusal to take the tests can result in your license suspended. So basically the DMV is leaving it open ended and will probably do it on a case by case basis until some law comes down the pipe about it
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Old 07-07-2013, 9:15 PM
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I sure hope you're not operating under the assumption that you can't be arrested if you refuse to take any/all tests...
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Old 07-07-2013, 9:18 PM
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1. You are not required to take any of the standardized FSTs (HGN, Rhomberg, Walk and Turn, Finger to Nose, One leg stand)

2. You are not required to take the PAS (portable alcohol screening device), which is the hand held device UNLESS you are on probation for DUI or under 21 and suspected of driving under the influence. If you are on probation for DUI or under 21, you have to take the PAS or else its a refusal and DMV will suspend your license for at least one year or revoke for two or three years depending on how many prior DUI arrests you have. Don't quote me on the length of the suspension...its all on the admin per se form that will be read to you.

3. If placed under arrest, you will be advised that you are under arrest and required to submit to the chemical test (breath machine at the station etc.. OR blood test at the hospital). These are the tests you cannot refuse and if you do refuse your license will be suspended for one year or revoked for up to two or three years. In this situation, the DMV probably won't issue you even a temporary license to go back and forth to work or school etc... If you take the test and are found guilty, you at least have a shot of getting a temporary/ restricted license that lets you go back and forth to work or school etc...

Some agencies do forced blood draws and others do not. Our agency only does forced blood draws on felony DUIs. You can still be arrested for DUI even if you refuse the FSTs and the PAS. Its not very difficult to articulate the reasons why I believe you are driving under the influence and are unable to safely operate a motor vehicle. It is more difficult to articulate on borderline cases; however, it is not so hard when the person is obviously intoxicated.

With that said, do not drink and drive and you will not have to worry about any of the above. Take a cab, call a friend, or arrange for a designated driver. Services like Lyft and Uber make it even easier to go out and drink and have a ride come and get you.

Hopefully this answers your question, OP.
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Old 07-07-2013, 9:27 PM
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I sure hope you're not operating under the assumption that you can't be arrested if you refuse to take any/all tests...
I get what you're saying, but no. That is not the issue. Will my license be suspended if I refuse to take any test prior being arrested? It is fairly clear what happens after arrest.
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Old 07-07-2013, 9:30 PM
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1. You are not required to take any of the standardized FSTs (HGN, Rhomberg, Walk and Turn, Finger to Nose, One leg stand)

2. You are not required to take the PAS (portable alcohol screening device), which is the hand held device UNLESS you are on probation for DUI or under 21 and suspected of driving under the influence. If you are on probation for DUI or under 21, you have to take the PAS or else its a refusal and DMV will suspend your license for at least one year or revoke for two or three years depending on how many prior DUI arrests you have. Don't quote me on the length of the suspension...its all on the admin per se form that will be read to you.

3. If placed under arrest, you will be advised that you are under arrest and required to submit to the chemical test (breath machine at the station etc.. OR blood test at the hospital). These are the tests you cannot refuse and if you do refuse your license will be suspended for one year or revoked for up to two or three years. In this situation, the DMV probably won't issue you even a temporary license to go back and forth to work or school etc... If you take the test and are found guilty, you at least have a shot of getting a temporary/ restricted license that lets you go back and forth to work or school etc...

Some agencies do forced blood draws and others do not. Our agency only does forced blood draws on felony DUIs. You can still be arrested for DUI even if you refuse the FSTs and the PAS. Its not very difficult to articulate the reasons why I believe you are driving under the influence and are unable to safely operate a motor vehicle. It is more difficult to articulate on borderline cases; however, it is not so hard when the person is obviously intoxicated.

With that said, do not drink and drive and you will not have to worry about any of the above. Take a cab, call a friend, or arrange for a designated driver. Services like Lyft and Uber make it even easier to go out and drink and have a ride come and get you.

Hopefully this answers your question, OP.
It does more than answering my question, it clarifies the FUD, but that's another story.
Thanks everybody very much and the MODS too for letting me post this thread.
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Old 07-07-2013, 10:13 PM
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If my response, "yes sir 3 beers at dinner" rises to probable cause for arrest. then the officer should arrest and ask to perform the tests.
Okay so the officer asks you to conduct a PAS and you refuse based on what you say so the officer is forced to arrest you based on the odor of alcohol and the refusal being upheld as an evidence of consciousness of guilt (http://wiki.caduilaw.com/index.php/Marvin_v._DMV) and so your vehicle gets impounded and you get taken to the station. At the station you blow a .06 which is under the legal limit for 23152 b however for 23152 a simply states that it is illegal to drive when under the influence of drug/alcohol even if under .08. So in theory you could still get booked for A but not B. chances are though out in the field a PAS would have shown you were under .08 and the officer probably would have let you go but your refusal forced the officers hand. Even if the cop lets you walk out the station you still have to deal with an impounded vehicle and getting home.
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Old 07-07-2013, 10:56 PM
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Okay so the officer asks you to conduct a PAS and you refuse based on what you say so the officer is forced to arrest you based on the odor of alcohol and the refusal being upheld as an evidence of consciousness of guilt (http://wiki.caduilaw.com/index.php/Marvin_v._DMV) and so your vehicle gets impounded and you get taken to the station. At the station you blow a .06 which is under the legal limit for 23152 b however for 23152 a simply states that it is illegal to drive when under the influence of drug/alcohol even if under .08. So in theory you could still get booked for A but not B. chances are though out in the field a PAS would have shown you were under .08 and the officer probably would have let you go but your refusal forced the officers hand. Even if the cop lets you walk out the station you still have to deal with an impounded vehicle and getting home.
You make a really good point with your post. The purpose of the FSTs are to help the officer better estimate the level of intoxication before making a decision to arrest and transport for the legally required chemical test.

It's also important to remember what the .08 limit (23152(b) and 23152(b)) really means. It in not a "magic line" that represents the difference between guilty or not. Long before there was limit (originally it was .10, then .08, and now .04 for some purposes), the law simply made it illegal to drive "under the influence." That definition invited all sorts of arguments at trial "yes, my client had been drinking, but was not under the influence". The creation of an objective standard made these cases a lot easier to handle. The idea is if you're over the limit, that the violation right there. No need to show impairment. But the opposite is not true. If you're under the limit, that doesn't mean you're OK to drive. It just means the prosecution has to show impairment. That's a lot more difficult, and more uncertain. That why cops like to arrest for 23152(b) instead of 23152(a). It's also important to remember that the BAC level doesn't accurately reflect the impairment of someone under the combined influence of alcohol and another drug.

As a practical matter, if I had a person in the field blow under a .08 on the PAS, and I had no other evidence of drug intoxication, I'd wish them a nice day and send them on their way.
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Old 07-07-2013, 11:20 PM
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Okay so the officer asks you to conduct a PAS and you refuse based on what you say so the officer is forced to arrest you based on the odor of alcohol and the refusal being upheld as an evidence of consciousness of guilt (http://wiki.caduilaw.com/index.php/Marvin_v._DMV) and so your vehicle gets impounded and you get taken to the station. At the station you blow a .06 which is under the legal limit for 23152 b however for 23152 a simply states that it is illegal to drive when under the influence of drug/alcohol even if under .08. So in theory you could still get booked for A but not B. chances are though out in the field a PAS would have shown you were under .08 and the officer probably would have let you go but your refusal forced the officers hand. Even if the cop lets you walk out the station you still have to deal with an impounded vehicle and getting home.
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.
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