Can I go to jail for refusal to take a breath test? No, but you automatically lose your license for a year for the refusal. You already know the outcome of the DMV hearing on appeal of automatic one-year suspension of your license imposed by DMV because of the arrest. Each of those are separate and run consecutively with any suspension that may be imposed by the court. You could end up with 3 years of suspension. Of course you can fight the DUI charges. When arrested or charged with any crime, the proper questions are, can any evidence obtained in a test, search or confession be used against you, and can you be convicted, and what can you do? Raise all possible defenses with whatever admissible and credible witnesses, evidence, facts and sympathies are available for legal arguments, for evidence suppression or other motions, or at trial. Not exactly a do it yourself project in court for someone who does not know how to effectively represent himself against a professional prosecutor intending to convict and jail you. If you don't know how to do these things effectively, then hire an attorney that does, who will try to get a dismissal, diversion, reduction or other decent outcome through plea bargain, or take it to trial if appropriate.

Answer Applies to: California
Replied: 8/17/2011

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On a first time DUI, a refusal will result in a 1 year suspension and may result in community labor or jail depending on where you're located. They need to read you the admonition on the back of the DS 367. The need to advise you that you have a right to take a blood or a breath test. Once they do, you have to pick one. If you do not, if you are silent or if you tell them that you will not take a test, then this is a refusal. If they don't read you the admonition, then you can't have refused. I'm sure the officer lied on the DS-367 and said you refused. That is typical. The cops are not supposed to look through the memory card of your camera. They are extending the holding in a recent case that held the police could review your texts on a cellphone as a search incident to arrest. People v. Diaz. In that case, the police reviewed Murphy's cellphone 23 days after his arrest and the Supreme Court said that it was okay. This is a continued expansion of the holding in U.S. v. Robinson which held that the police could search a person incident to arrest and seize contraband/evidence unrelated to the subject offense; Chimel v. California which allowed the police to search the immediate vicinity; and NY v. Belton which allowed the police to search the passenger compartment of the defendant's car incident to arrest. In Arizona v. Gant, the Supremes reined in the Belton decision and said the police could not search a vehicle without a warrant, incident to arrest where there was no danger of destruction of evidence or threat to officer safety.

Answer Applies to: California
Replied: 8/17/2011

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They have to admonish you of the 1 year license suspension for a refusal which is on the back of the DS367 forms. If they did not do this you can fight the refusal case. They may have thought you were under the influence of drugs (and he was examining your pupils) and were looking through your camera for indictia of drug use. They still should have offered you a blood test or urine test before charging you with a refusal.

Answer Applies to: California
Replied: 8/17/2011

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The refusal is not an offense in and of itself, but it will cause a license suspension. The officer is not required to give any specific sobriety tests. Once he determines that an offense has been committed, that is all he needs. Once you have been arrested, you can be searched incident to arrest which would include your camera cards for evidence.

Answer Applies to: California
Replied: 8/17/2011

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The cop doesn't even have to do any FST's. It is discretionary, and they can do 1 or 2 or 10 or none at all. Once you are arrested, your property can be examined. You need to hire a DUI specialist, because refusal cases, while very defensible, have severe consequences in court and the DMV.

Answer Applies to: California
Replied: 8/17/2011

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It is possible for the judge to impose a jail sentence in any DUI. But they normally don't. The refusal is an aggravating factor but usually results in a few more days in the work program, not jail. There is no requirement that the police give any certain tests or any at all for that matter. They try to gather enough evidence for the D.A. to get a conviction. The cop is allowed to look through your camera but only if there is reason to believe there is evidence of a crime in it. In this case it looks like he went too far and whatever he found can be excluded by the judge and not used against you.

Answer Applies to: California
Replied: 8/17/2011

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There seems to be something missing. Your question indicates you already had the DMV hearing. If so, and you had an attorney, you should contact them about this. If not, then I strongly suggest you take the arrest report (if you have it) and consult with some attorneys. That said, refusing to take a chemical test (blood or breath test) AFTER being arrested for DUI will NOT send you to jail on its own. It WILL, however, enhance penalties (i.e., potential 1 yr license suspension if a first offense). The DUI arrest alone subjects you to possible jail time.

Answer Applies to: California
Replied: 8/17/2011

Disclaimer: The response above does not form an attorney-client relationship. This answer may or may not apply to you and should not be relied upon as legal advice. LawQA does not make any representation as to the expertise or qualifications of this attorney. This attorney may or may not be admitted to state bar of your state.

If you are a licensed driver in the state of California you give implied consent to a blood or breath evidentiary test. If you refuse to take a blood or breath evidentiary test AFTER the officer properly admonishes you then it may be determined to be a refusal and your license can be suspended up to one year. However, a preliminary alcohol screening (PAS) breath test is voluntary and the officer should have advised you that it is a voluntary test. If you decline to do a PAS test, it is not considered a refusal. With regard to your camera, it is likely the officers looked through your camera to see if you videotaped the officers or took any pictures of them. Most often, police officers do not like to be filmed, since they may not be following proper procedure or may be infringing on your constitutional rights, thus officers prefer not to have any video tape evidence that can be used against the officers. If any video tape or pictures were found on your card that may incriminate any police officer in wrong doing, the officers could have an opportunity to delete those pictures and/or video.

Answer Applies to: California
Replied: 8/17/2011

Disclaimer: The response above does not form an attorney-client relationship. This answer may or may not apply to you and should not be relied upon as legal advice. LawQA does not make any representation as to the expertise or qualifications of this attorney. This attorney may or may not be admitted to state bar of your state.