A refusal suspension starts with the arresting officer’s sworn report, but DMV can sustain it only if it finds four specific facts by a preponderance of the evidence, including that you actually refused or failed to complete a test after an officer asked. If any one of the four is not proven, Vehicle Code section 13557(b) requires DMV to rescind the suspension, and a DMV hearing is where you contest the officer’s account.

The four facts DMV must find

Under Vehicle Code section 13557(b)(1), DMV sustains a refusal suspension only if it finds all of the following:

  1. The officer had reasonable cause to believe you were driving in violation of one of the listed DUI statutes.
  2. You were placed under arrest (or, in an under-21 case under Vehicle Code section 23136, lawfully detained).
  3. You “refused or failed to complete the chemical test or tests after being requested by a peace officer.”
  4. You had been told that your driving privilege would be suspended or revoked if you refused or did not complete the testing. This fact does not apply to someone who was incapable of refusing, such as a person who was unconscious.

The same four facts are the only issues at a DMV hearing on a refusal suspension (Vehicle Code section 13558(c)(1)). Under section 13557(b)(2), if DMV finds that any of them was not proven, it must rescind the suspension and, if you are otherwise eligible, return or reissue your license. When you say you did not refuse, you are disputing the third fact.

Where the refusal finding comes from

Under Vehicle Code section 13353(a), DMV acts “upon receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle” in violation of the DUI laws and that the person refused or did not complete testing. On review, DMV considers that sworn report and any evidence sent with it (section 13557(a)). The refusal on your paperwork is the officer’s account of what happened, and the hearing is where other evidence can show that account is wrong.

What the officer had to tell you

Vehicle Code section 23612(a)(1)(D) requires two warnings. You must be told that refusing or not completing a breath or urine test will mean a fine and mandatory jail if you are convicted of DUI. You must also be told that refusing or not completing a breath, blood, or urine test will mean a one-year DMV suspension, or a two- or three-year revocation if you have certain prior convictions or suspensions within 10 years.

For the DMV case, the warning that matters is the license warning. Whether it was given, what it said, and when it was given are facts you can test against the officer’s report, any recording, and witnesses. DMV has to find that the warning was given; you do not have to prove that it was not.

Situations that lead to a disputed refusal

Refusal disputes can involve a medical condition that made a breath sample hard to complete, an instrument problem the officer blamed on the driver, a question or pause the officer treated as a refusal, or confusion about which test was being requested. None of these is an automatic defense. Section 23612(a)(2)(A) says that a driver who is incapable of completing the chosen test, or says so, must submit to the remaining test, so an unfinished breath test can still end in a refusal finding if the blood test was then declined. What decides the question is what was asked, what you said and did, and what the record shows.

Evidence and next steps

  • To get a hearing before the suspension takes effect, request it within 10 days of receiving the notice of suspension (Vehicle Code section 13558(b)). The suspension does not take effect until 30 days after written notice unless a stay extends that date (section 13353(a)).
  • You are not limited to the officer’s report. Evidence at the hearing “shall not be limited to the evidence presented at an administrative review,” so you can offer new evidence.
  • Useful evidence includes your own written timeline of what was said and done, body-worn camera or dashcam footage, medical records if a condition affected your ability to complete a test, and witnesses to the arrest or the testing.
  • Do not alter or discard any record, and do not pressure any witness. Ask for the officer’s report and any footage before the hearing.

The DMV hearing’s other issues, such as whether the stop and arrest were lawful, are covered on the firm’s DMV hearing defense page. Suspension lengths, SR-22, and the ignition interlock path back to driving are on the DUI license reinstatement page, and refusal penalties in general are on the refusal cases page.

Criminal court decides willful refusal separately

If you are convicted of DUI, Vehicle Code section 23577 adds penalties only when the person “willfully refused a peace officer’s request to submit to, or willfully failed to complete, the breath or urine tests,” and that willful refusal must be pled and proven in the criminal case. The four DMV facts do not include willfulness. A DMV finding also does not settle the same facts in the criminal case (section 13558(g)), so if both cases are pending, each needs its own attention.

Talk to a lawyer

A refusal finding can cost you your license for a year or more, and a proven willful refusal can add to a DUI sentence. The Law Offices of David S. Chesley can compare the officer’s report with the actual timeline of your arrest and assess whether DMV can prove each of the four facts. Call (800) 755-5174.