Trusted Criminal Defense Attorneys In Southern California
I agree to receive promotional content and notifications from Manshoory Law Group through email or text message. For further details, kindly refer to our Privacy Policy.
The term assault weapon was coined to define a class of weapons designed for rapid-fire capabilities and with features enhancing their lethality. Examples are semiautomatic rifles and shotguns that can accept detachable magazines, pistol grips, folding stocks, and flash suppressors.
According to the U.S. Department of Justice[1], the classification of an assault weapon varies by jurisdiction, meaning that owning or using such weapons may have serious legal implications. The term “assault weapon” often carries emotional weight in discussions surrounding gun control, public safety, and mass shootings.
A Brief History of Assault Weapons Legislation
Legislation concerning assault weapons in the United States of America has dramatically changed over the past two decades. President Bill Clinton enacted the Federal Assault Weapons Ban in 1994 [2], outlawing the manufacture and sale of specific semiautomatic rifles and large-capacity ammunition magazines.
This ban was allowed to lapse in 2004, so the same arms began flourishing in the country again. California has been leading the charge in assault weapon regulation, as this state was the very first to enact an assault weapons law in 1989 straight in response to renewed concerns over gun violence and mass shootings.
Early legislation set the precedent for other states by establishing the California precedent of being committed to regulating gun violence through rules [3]. It could continue to evolve on assault weapon laws and become a pioneer in firearm regulations. The trend of more frequent mass casualty events has urged the rest of the nation to tighten control over guns, which is a very timely advance on California’s part.
California Law on Assault Weapons
Under California law, an assault weapon is defined by certain models [4] as well as general characteristics that distinguish it from other firearms. The California Assault Weapons Control Act classifies firearms into three principal groups [5], namely:
Category One: Specific Models Listed by Name – For Instance, the Familiar-Looking Firearms Like AK-47 and Colt AR-15.
Category Two: Variants of banned models that have slight differences but still share similar features.
Category Three: Firearms with military-style features such as detachable magazines, pistol grips, and flash suppressors.
Another way is through California’s restriction on the sale of large-capacity magazines that hold more than ten rounds. This is to limit access to dangerous guns. This legislation is based on public safety because of possible use in a mass shooting or other violent act.
The California Assault Weapons Ban Explained
The California Assault Weapons Ban was enacted in 1989 [6]. However, it has been modified several times since its enactment and reduces gun violence by prohibiting access to firearms that are classified as assault weapons. The major provisions include:
Comprehensive list of prohibited firearm models.
Prohibition of features that characterize a firearm as an assault weapon.
Registration of existing assault weapons.
Recent updates have made laws relating to the modification that may make previously legal firearms become definition assault firearms tighter. Research works reveal that although the California law has not eradicated gun violence, it may have played a role in having fewer incidences of mass shootings than other states without similar laws. For example, research proves that states with stringent gun-control measures often have fewer cases of catastrophic events.
In addition to this, California’s system has been criticized through several judicial means, making it a topic of controversy regarding whether it is effective and constitutional. The policy still faces criticism through the crime rate analyses by various researchers and policymakers.
Assault Weapon Ban: Compliance and Legal Challenges
California Assault Weapons Ban mandates that the owners of rifles who possess California-assigned assault weapons register those weapons with the California Department of Justice during the prescribed times. Failure to comply with this procedure gives rise to punitive actions, which may extend to firearm confiscation.
Legal hurdles over the ban have been high and relentless. Through various court decisions, the constitutionality of California’s bans has been established, yet numerous federal judges, based on their reading of the Second Amendment, have arrived at a verdict that these bans are unconstitutional. A recent landmark ruling by the Ninth Circuit Court of Appeals [7]reinstated California’s assault weapons ban and underlined the importance of such a ban for ensuring public safety.
One of the basic tensions that appears in current court battles is between gun rights enthusiasts and stricter gun control advocates. While courts continue to appraise the constitutionality of such laws, future decisions would heavily weigh on the regulation of firearms by states in America. Most importantly, the assault weapons ban cases pending before the Supreme Court are especially significant because they may set precedents affecting not only California but the general policies regarding regulation by the rest of the country as well.
The California Assault Weapons Ban is, on its own, one of the most important pieces in the overall strategy of California dealing with gun violence and escalating public safety. Its existence is a testament to the decision to regulate firearms perceived as particularly dangerous, and hence, it continues to receive constant legal scrutiny. Those people in need of guidance on compliance with this legislation or, on the other hand, those who face legal challenges on assault weapons are advised to consult the services of competent defense attorneys practicing firearm law.
Individuals seeking legal advice or guidance regarding compliance with the California Assault Weapons Ban or other related matters may wish to consult experienced attorneys who are knowledgeable regarding the federal and state laws dealing with firearms in California. Our attorneys at Manshoory Law can shed light on this area of law and provide the defense you need for your case.
Resources:
Koper, C. S., Woods, D. J., & Roth, J. A. (2004). An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003. Report for the National Institute of Justice, United States Department of Justice. NCJ 204431. https://www.ojp.gov/pdffiles1/nij/grants/204431.pdf.
Assault weapon characteristics. (2024, July 22). State of California – Department of Justice – Office of the Attorney General. https://oag.ca.gov/firearms/regs/genchar2
Assault Weapons Laws (California and federal law). (2022, September 21). State of California – Department of Justice – Office of the Attorney General. https://oag.ca.gov/ogvp/fed-assault-weapons-ban
False accusations can have devastating consequences, both for the accused and the accuser. Innocent people can find themselves facing criminal charges, a tarnished reputation, and even time behind bars, all based on a false claim. On the other hand, those who deliberately make false accusations may face severe penalties, including criminal charges and civil lawsuits.
But can you go to jail for false accusations? In this article, we’ll explore what constitutes a false accusation, why individuals are sometimes wrongfully accused, and the legal consequences of making false allegations.
What is a False Accusation and Why People Get Falsely Accused?
False allegations are claims of wrongdoing that are factually unsupported or untrue. These are also known as false reports or false claims.
Before we discuss the penalty for making false accusations, it is essential to look at why people are falsely accused, as only some of these come with a criminal charge. Below are a few reasons why people are sometimes wrongly accused:
Misrecollection – Where an accuser incorrectly recalls the details of a crime
Mistaken identity – Where an accuser mistakenly identifies the incorrect person as having committed a crime.
Misleading forensic evidence – Where experts exaggerate statistical claims, for instance, DNA or hair analysis or forensic evidence [1] is tampered with, compromised, or misread.
Malicious false accusations – Where an accuser intentionally provides police officers with an incorrect statement about an individual committing an offense
Official misconduct – When law enforcement officials or prosecutors commit an act of misconduct or abuse of power when charging an individual for a crime or by asking leading questions that coerce a detainee into having false recollections of an event.
Giving a False Report to a Police Officer
A person can be charged with a crime for intentionally giving the police false information [2] in connection with a traffic stop while the officer is performing his/her duties. Possible violations include any of the following:
providing a false answer
presenting false insurance documents
offering a false vehicle registration
or giving the officer a borrowed or fake driver’s license
A conviction for giving false information would be a misdemeanor with up to six months in jail, a $1,000 fine, or both. However, if the false information was offered in an effort to evade arrest, additional felony charges could be possible [3] .
What to Do If You Are Falsely Accused of a Crime?
If you are falsely accused of a crime, you will most likely have criminal charges brought against you. In this case, there are several things to do and ways to handle the situation:
Realize the severity of the situation – Gain an understanding of the severity of the allegations and take the charges seriously.
Hire an experienced criminal defense attorney – Do not attempt to remedy the situation alone. Instead, remain silent and hire the best criminal defense attorney [4] to guide you through the process, give you legal advice, and protect your rights.
Conduct a pre-file investigation – Before charges are filed, your attorney will gather evidence favorable to the accused and investigate the allegations further. Doing this is an effective strategy to convince the District Attorney (DA) to drop any charges should the investigation bring to light the charges brought are false.
Undermine the accuser’s credibility – By impeaching an accuser, your criminal defense attorney will ask the witness questions that undermine their reputation for truthfulness, casting doubt about whether what they claim they witnessed is, in fact, true.
File a civil suit or malicious prosecution claim – Here, the falsely accused brings a civil lawsuit against the individual who wrongfully accused them and seeks compensation for damages.
Private Polygraph – Taking a private polygraph to prove your innocence is another way to boost your defense and sway prosecutors into dropping the charges and prevent you from getting a criminal record.
What Are the Penalties for Making False Accusations?
So, what is the punishment for a false accusation, and is making false accusations a crime? Yes. In California, making false accusations is a crime and can lead to serious legal consequences. Under Penal Code Section 148.5[5] , it is a misdemeanor to falsely report a crime to law enforcement.
And if you’re wondering whether you can go to jail for making false accusations, the answer is yes. If convicted, penalties for false accusations could result in fines of up to $1,000, up to six months in county jail, or both.
Additionally, individuals may face civil lawsuits for defamation or malicious prosecution if the false accusations harm another person’s reputation or lead to wrongful legal actions.
Can You Press Charges Against Someone for Making False Accusations?
Can false accusations get you arrested? Yes. Further, you can press charges against an individual who wrongfully accused you[6] by bringing a civil lawsuit against them. However, you must show that the defendant filed a frivolous claim against you, that they caused damages due to their false claim, and that they filed their lawsuit for another purpose, like harassment.
Hire a Criminal Defense Lawyer in California to Defend Yourself Against False Accusations
There are various legal terms that can be confusing to those with limited experience of legal matters. Murder, for instance, is divided into three different categories: first-degree murder, second-degree murder, and third-degree murder. What are 1st 2nd and 3rd-degree murders, and what is the difference between 1st and 2nd-degree murders compared to 3rd-degree murder? This guide will help cover all of the different types of murder to help you understand.
Differences Between Murder Charges
In order to comprehend the difference between 1st 2nd and 3rd-degree murders, it’s vital to have a clear definition of each type. From a federal perspective, it’s important to note that, in general, murder is prosecuted in state courts as a state crime. It is not usually classed as a federal crime.
However, murder can become a federal crime if it violates federal law or occurs on federal land. An example of this would be the murder of a federal judge. Federal murder cases can be either first degree or second degree and may lead to punishments like life imprisonment or the death penalty.
First Degree Murder
California law defines murder as “unlawful killing of a human being, or a fetus, with malice aforethought“. First-degree murder is the most serious form of murder, and in California, any murders that are committed with intent and premeditation are classified as a first degree.
The Elements of First Degree Murder
In order to classify murders in different degrees, criminal law highlights various elements or aspects to take into consideration. A 1st-degree murder must have three key aspects:
Intent: A 1st-degree murder must be committed with some sort of intent to kill the person. The murderer must therefore have attacked or harmed their victim with the purpose of ending their life or doing evil.
Deliberation and Premeditation: Deliberation and premeditation are essential parts of quantifying a first-degree murder. This type of crime must be purposeful and planned out, rather than simply occurring in the heat of the moment.
“Malice Aforethought”: “Malice aforethought” is a legal term that basically means that a person who committed the murder did so with an intent to kill and a general disregard for human life.
Enumerated First Degree Murders
In order to simplify the classification of murder charges, many states, including California, have enumerated first-degree murder offenses in order to simplify the conviction process. In California, examples of these charges include drive-by shootings and gang-related murders.
First Degree Murder Sentencing and Penalties
As stated earlier, first-degree murders often have some of the strongest punishments, and this can be a big difference between 1st and 2nd-degree murders. In California, the punishment for this crime is death or imprisonment in the state prison for life without the possibility of parole, provided certain factors are met.
Aggravating Factors
There are certain factors that might allow a defendant to be charged with the harshest possible sentence in California. These are called “aggravating factors” and include things like:
The defendant has already committed one or multiple murders in the past
The victim was a police officer, judge, witness, prosecutor, or juror
The killing occurred in conjunction with another violent crime like rape
The Death Penalty
The death penalty may be a possible punishment for those who have been convicted of first-degree murder, and this is the case in California.
Life without the Possibility of Parole
People with a first-degree murder conviction may also face life in prison without any chance of parole.
Lesser Sentences
In some situations, those with this type of conviction may face reduced sentences of around 25 years in prison, depending on the precise nature and surrounding factors of the crime.
Second Degree Murder
2nd-degree murder or second-degree manslaughter is still a very serious crime but is a step down in severity when compared to the 1st degree. In general terms, a 2nd-degree murder is one that doesn’t have any kind of premeditation and may only have been intended to cause harm, rather than death.
In California, the term second-degree murder is applied to all murders that do not qualify under the category of first-degree murder. The state defines second-degree murder as any type of unlawful killing that is done with malice aforethought but without premeditation.
Intentional Killings Without Premeditation
One of the defining aspects of a second-degree manslaughter or murder charge is that there isn’t any sort of plan or premeditation on behalf of the killer. Even if they intend to kill someone at the moment of the crime, it may simply occur in the heat of the moment and isn’t something that they planned out in advance.
Intent to Cause Only Serious Bodily Harm
This is another factor that might define second-degree murder. The defendant might not have actually intended to kill their victim. Instead, they may have only had the intent to cause serious bodily harm.
Extreme Indifference to Human Life
Another type of second-degree murder is when a victim dies because the defendant showed an extreme level of indifference for their life.
Felony Murder
Felony murder is when someone is killed during the course of a felony, like a robbery. This can be classed as both first-degree and second-degree murder in California.
Second Degree Murder Penalties and Sentencing
The sentencing for second-degree murders can vary from 15 years to life in prison in California.
Aggravating and Mitigating Factors for Second Degree Murder
A range of aggravating and mitigating factors can come into play during sentencing. Aggravating factors like cruel or brutal acts and previous convictions could increase the severity of the sentence. Mitigating factors like mental illness or a troubled childhood can reduce the severity of the sentence.
Second Degree Murder Sentencing Procedure
The procedure for sentencing in this kind of crime will depend on the location, the nature of the crime, and other factors. Usually, a court hearing will be held to find out more about the case and weigh up the factors, before sentencing is issued.
Third-Degree Murder
There is no such thing as third-degree murder under California law. California only recognizes three types of murder charges: first degree, second degree, and capital murder. The idea of a third-degree murder charge only exists in three states: Florida, Pennsylvania, and Minnesota.
What Is the Difference Between Third-Degree Murder and Manslaughter?
On the face of it, 3rd-degree murder and manslaughter are very similar, but the states in which a third-degree murder charge can apply differentiate between them in different ways.
For example, in Minnesota, someone must act with disregard for human life and a depraved mind to be charged with 3rd-degree murder, but will only face manslaughter charges if they were aware of the risks to another life but went ahead with their actions anyway, such as vehicular manslaughter or driving under the influence – causing death to another person.
Penalties for Third Degree Murder
The penalties for this crime vary based on location. In Florida, the penalty can be up to 15 years imprisonment and fines of up to $10,000. In Minnesota, defendants can be sentenced to 25 years behind bars and $40,000 fines. In Pennsylvania, the maximum sentence is 40 years in prison, and the penalties for this crime are similar to penalties for attempted murder or voluntary manslaughter.
What Is the Difference Between First, Second, and Third-Degree Murder?
This guide has shown what is 1st 2nd and 3rd degree murders, and after understanding the unique aspects of each one, it’s much simpler to find the differences between them. The main differences are the severity of the crime itself and the severity of the punishment received.
First-degree murders are the most serious and punished accordingly, involving premeditated murder and intentional murder. Second-degree murders are the next step down but still involve intent to harm or to kill. Third-degree murders are the lowest level of criminal homicide but can still result in serious sentences.
A Los Angeles murder defense lawyer can help you learn more about the different types of unlawful killing charges, while a resentencing lawyer can help those who have already been convicted to appeal for a lesser sentence. It’s vital to get proper legal aid when dealing with these sorts of charges.
Three out of ten Americans use online dating platforms. Approximately 54% of American online daters believe relationships that come from online dating are just as successful as those that begin in person.
These statistics show that dating apps have become an integral part of modern romance, connecting individuals with shared interests and values. However, the increased reliance on these platforms has brought to light a concerning trend—dating apps can sometimes lead to legal complications, with rape charges being one of the most severe consequences.
Not everyone you meet online is what they claim to be. In fact, over 53% of Americans fabricate some or all of their profile. Online daters may lie about their age, background, and credentials for their selfish gains.
Contact us at Manshoory Law Group if you are facing criminal charges related to online dating. We will help you build a solid defense strategy. Call us at (877) 958-9414 for a free consultation.
The Dangers of Dating App Meet-Ups
You may have probably thought about online dating, especially if you are too busy to go out there and meet new people. With online dating, you can meet your new partner at the click of a button. In most cases, you will access numerous profiles and match with those with whom you share common interests. Then, you can start a conversation and arrange for a meet-up. This is how easy it is to find a partner.
However, how can you verify the identity of the person you speak to? Individuals using online dating apps may provide inaccurate information. They may also share outdated or fabricated images. This way, establishing the true identity of the person you are speaking with becomes challenging, even if the platform claims to enforce stringent verification measures.
The initial interaction typically involves virtual conversations, allowing individuals to acquaint themselves in the digital realm. However, complications may arise during the first in-person meeting and subsequent interactions, particularly if the relationship progresses to more intimate levels.
Nowadays, some dating apps may tempt users with the prospect of same-day “hookups,” often requiring minimal online interaction beyond a shared interest in sexual gratification. Despite frequent shutdowns by law enforcement, these platforms persistently reappear in various forms.
Some first meet-ups may go well, especially if you have been truthful with each other from the start. However, what happens if you discover your partner has been deceitful?
Potential Accusations You Can Face
Age is of significant importance in the context of sexual encounters stemming from online dating apps. Merely relying on the information stated in someone’s dating profile, where they claim to be 18 years of age or older, does not absolve you of legal liability for potential statutory rape. This is if the actual age turns out to be below 18.
California Penal Code section 261.5 states that it is unlawful to have sexual intercourse with a minor. Note that you cannot defend yourself in a statutory rape case by claiming that the minor consented to the sexual activity. This is because minors are deemed legally incapable of providing consent.
Even though online dating apps only allow adults, minors have found a way to infiltrate these platforms. In most cases, they join with fake credentials. You could assume you have planned a meet-up with an adult, yet they is a minor.
Therefore, when meeting in person, it becomes imperative to request proof of age if they assert to be 18 or older.
However, what if you reasonably and genuinely believed your partner was over 18? In that case, you can use the defense of “Good Faith Belief” as set out in California Criminal Jury Instruction 1071.
Practically, determining the exact age of individuals aged 15 to 25 is often challenging. Appearances alone may not be conclusive.
While the “Good Faith Belief” defense may be valid, you must convince the jury that your belief in your partner’s age would be reasonable for any adult. Here – you cannot just rely on appearance; you must provide other justifications that made you believe your partner was over 18.
Additionally, you may be charged with the more severe criminal offense of rape. The criminal offense of rape is defined as engaging in intercourse without the consent of your partner, regardless of their age.
If the sexual act occurs after a night of dining and drinking, your partner may be too intoxicated to provide informed consent. California law requires affirmative consent, and an individual incapacitated by alcohol or drugs cannot legally provide such consent.
You can also be charged with the criminal offense of sexual assault. Sexual assault encompasses acts such as touching the intimate parts of another person without their consent for arousal, sexual gratification, or abuse. Even actions perceived as innocent foreplay may lead to legal consequences.
Recognizing and respecting personal boundaries is essential in the digital space. If you do not do so, you can face criminal charges under California Penal Code 646.9 and 653m. California Penal Code 646.9 criminalizes stalking. Stalking is legally defined as the act of sending messages to threaten or harass another person. California Penal Code 653 states that it is unlawful to send an obscene, repeated, or threatening message with the intent to annoy the recipient.
When using a dating app, do not repeatedly send unsolicited messages. Respect the privacy settings of individuals and do not pressure the potential partners you interact with into activities they are uncomfortable doing.
Potential Penalties You Can Face Upon Conviction
The punishments for statutory rape are contingent on the age difference between the parties involved. An individual who is no more than three years older than the victim may face a misdemeanor charge, leading to a potential fine of up to $1,000 and a maximum prison sentence of one year.
However, should the offender exceed a three-year age difference and be older than 21 while the victim is 16 or younger, the offense escalates to a felony. In such cases, the penalties include a fine of up to $10,000 and a prison term ranging from 16 months to four years.
Rape is classified as a felony. It carries the potential for a three-, six-, or eight-year prison sentence. This sentence can be increased to 13 years if the victim is under 14. You may also get an 11-year sentence if the victim is 14–17. Additionally, individuals convicted of rape are obligated to register as sexual offenders for life.
The criminal offense of stalking, under California Penal Code 646.9, can be charged as either a felony or a misdemeanor. As a misdemeanor, it attracts a jail term of a maximum of one year. As a felony, it is punishable by a state prison sentence of up to five years. A criminal charge under California Penal Code 653m may result in a county jail sentence of up to six months.
Need a California Criminal Defense Lawyer? Contact Us Right Away for Professional Legal Help!
Issues can arise in interpersonal connections across various contexts. However, online dating platforms, in particular, can serve as a fertile ground for deception and ensuing complications. It is essential to tread carefully because, without realizing it, you might end up causing serious legal issues for yourself if you rush into things too quickly.
At Manshoory Law Group, we have extensive experience assisting thousands of people in California with relationship-related legal matters. Our approach is to strongly advocate for you, working closely to figure out the best strategies for a positive outcome.
When it comes to legal support, choosing an experienced criminal defense attorney over a public defender can make a significant difference. You want someone who understands the complexities of the law and is dedicated to protecting your rights.
Call us at (877) 958-9414 for a free consultation if you are facing relationship-related legal issues. We will discuss how we can navigate these challenges together. Your peace of mind matters, and we are here to help.
The results of a DUI test hold the power to sway the scales, determining whether you may be acquitted or convicted. Contemplating the possibility of not taking the test may lead you to consider the option of refusing it altogether. But can you refuse a DUI test?
Yet, this decision is not without its legal implications. In this article, we will highlight the legal repercussions that may accompany such a choice.
However, if you find yourself grappling with the aftermath of having already refused a California DUI test and are now facing charges, fear not—we at Manshoory Law Group are here to guide you through. We can help you build a solid defense strategy. Call us at (877) 977-7750 for a free consultation.
The Implied Consent Law
So, how to refuse a DUI test? When driving in California, it is automatically assumed that you have given your consent to undergo DUI testing in the event of a lawful DUI arrest. This legal provision is commonly referred to as California’s “implied consent” law.
This means that you cannot refuse a DUI test post-arrest without facing legal repercussions. However, you can comfortably refuse a pre-arrest DUI test.
Let us have a closer look at these two scenarios:
Pre-arrest DUI Tests
Once you have been pulled over but not yet arrested, the police may ask you to take a breath test. In some cases, they may also ask you to participate in a field sobriety test.
There are no legal consequences for refusing these tests unless you are under 21 or on probation for a previous DUI conviction.
The evidence from these tests can be used in a criminal trial against you. Unfortunately, the police will rarely tell you that you have an option to refuse a pre-arrest DUI test. We do not recommend agreeing to a pre-arrest DUI test unless you are under 21 or on DUI probation.
Post-arrest DUI Tests
Once you have been arrested, refusing a DUI test carries unavoidable consequences. This holds true even if you have already undergone a pre-arrest DUI test.
Note that you do not have a legal right to refuse a post-arrest DUI test based on the belief of wrongful arrest. However, suppose the judge determines the unlawfulness of your arrest or traffic stop. In that case, they will dismiss the charge — even if the test initially indicates intoxication.
Can I Select My Preferred DUI Test After Arrest?
Generally, you will be told to choose between a blood or breath test. However, in some cases, the police will not give you a choice – they will solely decide for you which test you should take.
Here are examples of some of these scenarios:
The police officer suspects that you are under the influence of drugs. In such cases, you will only be allowed to take a blood test.
Your preferred DUI test is unavailable. In such cases, you will take the available test.
The police officer considers your breath test to be unreliable. In such cases, you may have to take a urine or blood test.
Can I Refuse Taking a Different DUI Test Than the One I Requested?
Any deviation from the officer’s instructions, regardless of the circumstances, will be deemed a refusal to undergo a chemical test.
It is crucial to bear in mind that, according to California’s implied consent law, you have implicitly agreed to submit to DUI testing. If the police officer fails to provide you with a choice, you retain the right to request an alternative test. Moreover, if proper procedures were not adhered to during the testing process, you can contest the results during the trial.
However, once you are specifically directed to undergo a particular DUI chemical test, there are very limited legal grounds on which you can refuse to comply.
What If I Have a Medical Condition?
Certain medical conditions may either excuse you or pose a hindrance to undergoing a specific DUI test. However, these conditions do not exempt you from the overall requirement of a DUI test.
Suppose you have a blood clotting or heart disorder and are under treatment with anticoagulants. In that case, you are allowed to refuse a blood test.
Furthermore, specific conditions may lead to inaccuracies in BAC limit readings from a breath test. Some examples of these conditions include the following:
Chronic heartburn, acid reflux, or GERD can potentially yield falsely elevated breath test results.
A high-protein/low-carbohydrate diet may inadvertently deceive breath test devices.
Should the officer inquire about your medical condition or dietary habits, providing truthful responses is crucial. Failure to do so may be interpreted as a willful refusal to take a DUI test.
What If I am Severely Injured or Unconscious?
Being injured or unconscious does not legally excuse you from undergoing a DUI test.
However, if an injury, particularly head trauma, renders you incapable of providing meaningful consent, you can refuse to take a DUI test. It is crucial to note that if your inability to give consent stems from the influence of drugs or alcohol, including prescription medications, your refusal to undergo a DUI test is not considered excusable.
What If I am Unable to Complete a DUI Test?
Suppose circumstances beyond your control prevent you from completing a test. In that case, you must be allowed to undergo a different test.
Some of these circumstances may include the following:
Inability to generate a sufficient volume of air for a breath test
Difficulty producing sufficient urine for a urine test
However, note that a deliberate failure to complete a California DUI chemical test will be treated as a refusal. In the event your case proceeds to trial, the judge may instruct the jury that they have the option (though not an obligation) to infer that your refusal stemmed from your awareness of guilt regarding the DUI charge.
Other Situations That Can Qualify as a Refusal to Take a DUI Test
While the idea of “refusing” a DUI test may appear straightforward, it is a nuanced concept with various situations that could unwittingly be perceived as refusals. Beyond the scenarios mentioned earlier, here are additional considerations:
You are granted only one opportunity to accept a test. Suppose you decline a DUI chemical test initially. In that case, you do not possess the right to change your decision, and the officer is not obligated to provide a second opportunity.
Failure to select a DUI test is treated as a refusal. Despite the familiar “right to remain silent” upon arrest, this right pertains solely to self-incrimination, not the choice of a chemical test post-arrest. If offered a selection and you remain silent, it may be construed as a refusal.
You do not have the right to speak to a lawyer before a DUI test. While you typically have the right to speak to an attorney after an arrest, this right does not extend to DUI tests after an arrest.
Your own doctor cannot be present during the test. You do not have the legal right to have your personal doctor oversee or participate in the DUI chemical test. Instead, the test will be conducted by a law enforcement officer or an external laboratory.
Consequences of Refusing a DUI Test
Refusing to undergo a post-arrest DUI blood or breath test in California can result in enhanced penalties after conviction.
The escalated penalties for refusing a DUI chemical test include the following:
For a first-time DUI, an extra 48 hours in jail and a mandatory nine-month enrollment in a DUI school, replacing the standard three-month DUI program applicable to first-time DUIs without refusals.
In the case of a second time DUI, an added 96 hours of confinement in county jail.
For a third time DUI, an extended sentence of 10 additional days in jail.
In instances of a fourth or multiple DUI offense, an increased penalty of 18 extra days in jail.
Can Refusing a DUI Test Help Me in My Criminal Case?
While refusing a DUI test may heighten potential penalties, surprisingly, it could yield positive outcomes for your criminal case.
Devoid of supporting DUI test results, the DA may question the credibility of the police officer or doubt their ability to persuasively convince a jury of your guilt.
In such scenarios, there is a chance your charges might be outright dismissed or downgraded to a “wet reckless,” a less severe charge. This plea bargain involves admitting to driving with some measurable alcohol in your blood. Another potential plea bargain is a “dry reckless,” where you admit only to reckless driving without any mention of alcohol.
Need a DUI Defense Attorney? Contact Us Right Away!
Although refusing a DUI test can lead to enhanced penalties, it is essential to recognize that strategic defense options exist. At Manshoory Law Group, our team of experienced DUI defense attorneys is dedicated to navigating the intricate legal terrain on your behalf.
Whether challenging the credibility of arresting officers or exploring potential dismissals and plea bargains, we are here to formulate a robust defense strategy tailored to your unique circumstances. Call us at (877) 977-7750 for a free consultation.
We use cookies to personalize content and ads, to provide social media features and to analyze our traffic. We also share information about your use of our site with our advertising and analytics partners who may combine it with other information that you’ve provided to them or that they’ve collected from your use of their services. Agree
Privacy & Cookies Policy
Privacy Overview
This website uses cookies to improve your experience while you navigate through the website. Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may have an effect on your browsing experience.
Necessary cookies are absolutely essential for the website to function properly. This category only includes cookies that ensures basic functionalities and security features of the website. These cookies do not store any personal information.
Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. It is mandatory to procure user consent prior to running these cookies on your website.
