Law Review: Refusal to take sobriety test cost driver his license |

Law Review: Refusal to take sobriety test cost driver his license

David Zink, commercial driver, was driving his own personal car when the police stopped him for driving under the influence of alcohol. Zink refused to take a field sobriety or chemical test.

He was arrested for DUI. A blood test administered at a hospital without Zink’s consent (how did they do that?), revealed a blood alcohol concentration of 0.24 percent – three times the legal limit.

Under the vehicle code, all drivers of motor vehicles are required to consent to a blood, breath, or urine alcohol test when lawfully arrested for driving under the influence. Driver’s choice as to which test.

If a driver refuses to submit to a blood, breath or urine test after being stopped for drunk driving, presumably so the test results are not used in court, the driver’s license will be suspended for one year, provided the driver was told his or her driving privilege would be suspended for refusal to take a test.

If a driver has a blood alcohol level of 0.08 percent, the license is lost for four months for a first conviction. That increases to one year if there is a separate alcohol-related driving conviction or the driver has a separate drunk driving conviction within seven years. Of course, the court imposes a fine and/or jail time for DUI convictions in addition to the mandatory loss of license.

Commercial drivers subject to losing their license for four months for excessive blood alcohol may have the four months reduced to a 30-day actual suspension of the license followed with a five-month license restriction – for use as a commercial driver.

Mr. Zink argued that he was entitled to the 30-day suspension with a five-month restriction, not the one year suspension – for merely refusing to take a chemical test.

The court ruled against Zink, concluding that for refusing to take a chemical test his license is suspended for a year. The shorter 30-day suspension is not applicable.

Keeping property if you go bankrupt

One of the questions attorneys occasionally get asked is “If I file bankruptcy, do I have to give up everything I own?” Actually, debtors more often than not ask if they can give everything to their spouse and then file, but that’s a different column.

The answer is no, the law allows a debtor to keep his or her basic properties as exemptions:

– One motor vehicle, not to exceed $2,400 in value.

– Household furnishings, household goods, wearing apparel (clothes), appliances, books, animals, crops or musical instruments held for personal, family or household use – not to exceed $400 in value in any particular item (the $1,500 Italian suit goes).

– Jewelry not to exceed $1,000 in value – total.

– Tools of the trade or profession not to exceed $1,500.

– An unmatured life insurance contract owned by the debtor.

– Up to $8,000 of any dividend or loan value of any unmatured life insurance policy owned by the debtor under which the insured is the debtor or an individual of whom the debtor is a dependent – whatever that means.

– Professionally prescribed health aids.

– A Social Security benefit or unemployment compensation.

– A veterans’ benefit.

– A disability, illness or unemployment benefit.

– Spousal support to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.

– Payment under a stock bonus, pension, profit sharing, annuity or similar plan to the extent reasonably necessary for the support of the debtor, with certain restrictions. (As of a recent case, IRA plans that qualify under the Internal Revenue Code are exempt.)

– An award under a crime victim’s reparation law.

– Certain wrongful death and personal injury awards and life insurance payments, with limitations

– $15,000 in value in a residence or burial plot (a form of residence?) although additional equity may be protected with a homestead.

– $800 in any property plus unused amount of $15,000 residence exemption.

Jim Porter is an attorney with Porter/Simon, with offices in Truckee and Reno. He is a mediator and was the Governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at or at the firm’s web site

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