The Right of Refusal in California DUI Cases

If you’re arrested for driving under the influence, and you’re asked to submit to a breath or blood test, remember that you still have a third choice.

You can refuse to submit to such testing and face the consequences. What are those?

  • You may lose your license for one-to-three years depending on your driving history;
  • You’ll have to pay a fine;
  • You’ll serve mandatory jail time if you’re convicted; and
  • Your refusal can be used against you at trial as evidence of your guilt.

You may not like your options, but you’ve still got a right to refuse, and if a police officer wants to deprive you of that right, he or she must get a warrant.

Take this recent case, for example. A woman was stopped on suspicion of driving under the influence. The police officer asked her to blow into a breathalyzer, saying it was optional (which is true). She declined. He then arrested her and asked her to choose between a breath and blood test. He told her that she was required to choose one or the other, but he didn’t explain the consequences of refusing like he was supposed to. That made it seem like she couldn’t refuse (which isn’t true). So she chose the blood test. After she got charged, she moved to suppress the results on the ground that her consent wasn’t free and voluntary because the officer made it seem like she couldn’t refuse. But the trial court denied it.

On appeal, the court ruled that the trial court should have suppressed the test results. Because the officer didn’t have a warrant, the search and seizure was illegal unless it was based on an exception to the warrant requirement (like consent). In this case, however, the woman’s consent wasn’t free and voluntary because the officer didn’t correctly explain the law. He told her that she had to take a test under California’s implied-consent law (which is true). But he didn’t advise her of the consequences for refusing. That made it seem like she couldn’t say no, which meant there was no actual consent.

As the court explained, it’s no different than if the police came to your home and claimed to have a warrant but then argued that you consented to their search by opening your door. That’s not a valid consent because you had no right to resist their authority, anyway. So if it turns out they didn’t actually have a warrant then their whole search would be illegal, and they couldn’t rescue their case by relying on your consent.

If At First You Don’t Succeed

Here’s that DUI case we alluded to last week.

It’s based on a driver’s challenge to his license suspension after his arrest. His post-arrest blood test showed a blood-alcohol concentration (or BAC) of 0.23 percent. He challenged this finding at the DMV’s administrative hearing and lost. He then petitioned the superior court to overturn that finding and lost again.

After twice losing before the agency and the trial court, he took another swing in the court of appeal, and there, he won.

The issue was whether his blood-test result was reliable.

The crime lab had tested his sample using a machine called a gas chromatograph. It has a heated chamber with two columns through which a sample is passed in gaseous form, and therein lies the rub. You’ve got to use both of those columns. One isn’t enough. Otherwise, you may get a false positive or the machine may indicate more alcohol than actually exists.

According to the driver’s expert and even the machine’s own manufacturer, one column could “tentatively identify” alcohol but “simply [could not] confirm its identity” or “how much might be present.”

In this case, the lab used the right machine, but the test results showed data from only one column, and the DMV didn’t offer any proof to show otherwise.

Thus the DMV could not rely on the test results because, as a matter of scientific principle, one column’s result was incapable of establishing the driver’s BAC.

And so the court of appeal reversed.

Orange County Crime Lab Announces Error that Affects Blood-Alcohol-Test Results in 2,200 Cases

In the real world, crime labs make mistakes, even in Orange County. Earlier this month came word that the Orange County Crime Lab had produced inaccurate blood-alcohol-test results in 2,200 driving-under-the-influence (DUI) cases that were filed this year. In recent days, the District Attorney’s office has issued letters to people whose cases may have been affected, including 900 people whose cases have already resulted in convictions.

The Orange County Crime Lab discovered the error on October 10, during one of its internal audits. Apparently, back in May, a technician mistakenly calibrated one of two machines that are used to test blood samples (the results of which are then averaged). Since then, that machine has skewed blood-alcohol results in hundreds of DUI cases, though officials insist that the error is only capable of affecting the outcome in about 200 cases or fewer.

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