On consent to DUI chemical test in Los Angeles

March 15, 2014

DUI chemical test

This is a little technical post but very helpful in some Los Angles DUI cases. Every single DUI arrest in Los Angeles (and the rest of California) involves an eventual request to consent to DUI chemical test. Los Angeles Police officers (and peace officers of other agencies), after arresting a driver suspected of drunk driving, will tell a driver that he has to submit to DUI chemical test of his blood test or breath test.  In other words, they are asking the driver to consent to search of his body for evidence of crime! This is a search and seizure (AKA 4th amendment) issue that can and need to be litigated. Why? Because not all consents are valid!

US Supreme Court in Bumper v. North Carolina (391 US 543) reasoned that coercion doe not only mean treats or use of force, but it also means lying about reasons for search. In that case, a police officer lied to a house owner that he has a search warrant and the owner of the house agreed to the search, which produced evidence that was used against Bumper at trial.  To that U.S. Supreme court said, “…The situation is instinct with coercion -albeit colorable lawful coercion. Where there is coercion, there cannot be consent”.  In other words, when a police officer obtain consent by misstating his legal mandate, the consent is coerced.  Then, the Supreme Court suppressed evidence used against Bumper at trial (which was a .22 caliber rifle).

Extending Bumper v. North Carolina logic to DUI arrest scenario,

a person who is arrested for a DUI is often told that they have to submit to DUI chemical test, after that, the arrested person usually consents to a blood test or breath test.

If however, “…you have to submit to a test” is an exaggeration of officer’s legal mandate (or misstatement of law), then consent obtained for this chemical test is coerced (like it was in Bumper).  California implied consent statute, found in VC 23612 says that, “…driver is deemed to have given his consent…“. Notice that there language such as ‘have to submit’ or ‘must submit’ is not used in the statute.  This is an important distinction with one requiring a driver to submit to DUI chemical test (like in “you must agree”) and another acknowledging that consent is already obtained (like in “you already agreed”).  Further, despite deeming drivers consenting to a blood test, subsection (D) of VC 23612 provides for higher punishment for failure to submit or complete DUI chemical test.   In doing so, California Vehicle Code makes a distinction between ‘consent to test’ on one hand and ‘submission to test’ on the other hand.  Since consent to test is different then submission to test, there can be consent without submission, submission without consent, lack of consent without submission, and consent with submission. Telling someone that you “have to” or “must” is a deviation from language of   CVC 23612 and implies that a person have to consent and have to submit to DUI chemical test.  Like in Bumper v. North Carolina, this is a statement that exaggerates legal mandate of the officer and a misstatement of law!   Despite California contemplating that deemed consent can still not yield results of a blood test, many officer obtain consent by using coercive statement such as “you must” or “you have to”, that misstates the law and does not give a person a choice to refuse to submit to DUI chemical test.

As a side note, California’s implied consent statute language is contradictory to right against self incrimination and right to remain silent.  If there is a constitutional right not to incriminate yourself, then police can not force you to submit to a test that will give prosecution your bodily fluids that are most certainly will be used against you in a criminal prosecution.  But, if you have the right to refuse to produce your bodily fluid, then how can you be punished for failing to comply with VC23612(D)?  By the same token, if you have a right to remain silent, then how can police claim that you consented if you intended to exercise the right to remain silent and not to any answer to a request for a test?

Lastly, in 1981 California Supreme Court applied Bumper logic to search of person.  In Crofoot v. Superior Court (1981) 121 Cal.App.3rd 717, 725, the court held that it was improper to purposely put a subject in the position where he feels that by exercising his right to refuse, he would be incriminating himself or admitting participation in illegal activity.  There, a defendant was stopped by an officer and asked for permission to search his backpack.  Defendant replied “why”, to which the officer said “because we have a lot of burglaries from area where you coming from”. After this exchange officer commented that defendant should not have any objections if you were not doing anything illegal.   Consent obtained in this manner is also coerced because defendant had a constitutional right to remain silent and refuse to give consent, and the denial by the officer of the exercise of that right at the risk of suffering an adverse inference to be drawn by the officer amounted to placing an unauthorized condition upon the exercise of the right.

Obviously, to argue coerced consent you need help of a professional, such as skilled LA drunk driving attorneys.  As always you can reach top Los Angeles DUI attorney directly at (818) 921 7744 to talk about your DUI case in Los Angeles county.

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