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Criminal Defense Attorneys

DUI Refusal Defense – Background Noise of Radio?

In the context of DMV hearings for a DUI when the driver refuses to submit to a breath or blood test, it can often seem hopeless.  After all, if one did submit, there would be a blood alcohol content (BAC) measurement and the refusal would not be an issue.  When there is no BAC measurement, how can one defend against his?

The answer is generally speaking, four ways.  First, as might be anticipated, one can argue that the police officer’s admonition was incomplete or in some other way improper with added information that is not part of the required admonition and the driver refuses to submit to the test.  This is often proven by the Age 21 and Older Officer’s Statement, page two, being blank and/or an audio recording of the admonition being incomplete or in some way improper.

Second, there is what DUI attorneys call “officer-induced confusion,” which is a situation when the officer states the admonition in his own words in an incorrect manner and realizes he or she has confused the driver by this error, but then fails to correct the error and the driver refuses to submit to a breath or blood sample.  This can be proven by an audio recording of the admonition and the driver (“Respondent,” our client) testifying that he or she was confused by the officer’s attempted admonition.

Third, there is a very uncommon situation wherein the officer (usually a new officer) gives the driver a Miranda warning (including the right to remain silent) and then, after this, gives the driver the DUI admonition and the driver, relying upon his Miranda right to remain silent, says nothing and the officer interprets this as a refusal to submit to a breath or blood test.  This can be proven by an audio recording, the police report and the driver’s testimony.

Fourth, there is radio transmission interference from the police vehicle’s radio such that the interference noise prevented a clear and unintelligible admonishment.  Thompson v. Department of Motor Vehicles (5th App. Dist., 1980) 107 Cal.App.3d 356.
The Thompson case is worth a deeper look.  James Thomas Thompson was pulled over by Officer Clark and Clark suspected Thompson of driving under the influence of alcohol.  Under Vehicle Code 13353, Officer Clark then proceeded to advise Mr. Thompson that he requested him to submit to a chemical test for alcohol by providing a breath, blood or urine sample (back then, urine was also a valid sample). 

At the time Clark was attempting to give the required warning, there was interference from radio transmission on the police vehicle’s radio and this interference prevented a clear and intelligible warning.  A tape recording was made by the police during the giving of the admonishment.  Portions of the recorded admonishment were inaudible.  When the tape was being made, the tape recorder was in the front of the patrol vehicle, near the radio, while Officer Clark and Mr. Thompson were in the back seat during the giving of the advisement.

Officer Clark then asked Mr. Thompson if he would submit to a test and the response was inaudible.  Office Clark asked Mr. Thompson if he understood the admonishment and the response was inaudible.  Officer Clark asked if Mr. Thompson would take a blood test and Thompson said no.  He then asked Thompson if he would take a breath test and the response was inaudible.  He then asked Thompson if he would take a urine test and the response was inaudible. 

The tape recording was played at the DMV Hearing and Thompson’s attorney argued the refusal should be excused because he was not properly admonished due to the police radio transmission volume overcoming the volume of the admonishment and preventing Thompson from hearing the officer’s admonishment.  Thompson also testified at the DMV Hearing that he did not understand what the officer told him due to the police radio interference.

The DMV suspended Thompson’s license anyways and Thompson appealed to the trial court appellate division, which reversed the suspension.

The DMV then appealed to the Fifth Appellate District court in Fresno, which affirmed the trial court.  The Fifth Appellate Court, which found Thompson’s silence significant when Clark asked him whether he understood the admonishment that had just been read.  Therefore, Thompson could not be punished with a license suspension because his refusal was not an informed refusal, as Clark did not adequately admonish Thompson due to the radio transmission interference.

We think this case is under-utilized by counsel representing those facing license suspensions for refusing to submit to a breath or blood test and interference should not be limited to radio transmissions, but also background traffic noise if the driver simply does not answer the officer’s questions if he understood the admonishment and if he would take one of the tests.

For more information about refusing a DUI breath or blood test, please click on the following articles:

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