When a driver was not admonished in compliance with Vehicle Code section 23612(a)(1)(D), because the officers improperly read the admonition or misstated the admonition, a refusal finding cannot be sustained at a DMV hearing.

 Decker v. Department of Motor Vehicles, (“Decker”) (1972) 6 Cal.3d 903, holds that when a police officer provides an inaccurate test admonition following a DUI arrest, there cannot be a refusal. 

In Decker, the California Supreme Court addressed the elements of section 13353. The appellant was arrested for DUI and advised that if he refused to submit to chemical testing, his driving privileges could be suspended for a period of six months. Id. at 905. Decker responded that he understood that admonition but that “they won’t take my driver’s license.” Id. The court rejected DMV’s argument that substantial compliance with the requirements of section 13353 was sufficient. Id. at 906.

In so doing, the Decker court agreed with the rationale and conclusion set forth in Giomi v. Department of Motor Vehicles, (1971) 15 Cal.App.3d 905, 907, which held that a proper warning of the consequence of refusal is one of the elements essential to suspension of license. Hence, an admonition is adequate if it states that refusal “would probably” cause suspension, but an admonition that refusal “could” result in suspension was insufficient because it suggests only a possibility of suspension. Id. at 905. The Decker court stated that an officer’s qualification of the admonition, without explanation, could mislead the driver concerning the legal realities of the situation and thereby defeat the purpose behind the statute. Id. at 907.

The court cautioned that a trial court is obligated to determine whether the driver was in fact misled by inaccurate advice and whether his refusal to submit to a test was a result thereof. Id. at 907. See also Hoberman-Kelly v. Valverde, (2013) 213 Cal.App.4th 626, 632-33 (where driver expresses confusion, arresting officer must elaborate on the juxtaposition of Miranda warning and implied consent warning and inter alia, inform him that he has no right to consult an attorney before making a decision that he will or will not submit to chemical test).

Defending a refusal allegation at a DMV hearing is imperative if the client wishes to keep his driving privileges in California. If the APS hearing results in a finding of a chemical test refusal the license will be suspended and cannot be set aside even if the driver is successful in getting an acquittal in Court.

Matthew Ruff is a Nationally Recognized DUI Lawyer in Torrance CA. With over 25 years experience in defending drunk driving cases, Matt is often consulted by other professionals for guidance in this very complex area of the law.

In order to win a DMV hearing involving a refusal allegation you must be prepared and be familiar with the current laws in California. Matthew has the highest track record of “set asides” for APS Hearings. What this means is he saves licenses for his clients who have been arrested for DUI. Refusals are particularly difficult because the officer usually does a good job of submitting paperwork that will guarantee a suspension of your license. Why? Because the officer wants to punish you for being non compliant and follow his orders. Vehicle Code section 13353 governs the suspension and/or revocation of your license for failure to submit to a chemical test.