Prior to April 2013, any person driving in California, with or without a California driver’s license, impliedly consented to give a blood or breath sample if arrested from driving under the influence of alcohol. If driving under the influence of drugs, including prescription drugs, then obviously only a blood sample could be taken.
If a person refused to provide either blood or breath, case law allowed the person to be restrained while a blood sample was forcibly drawn by a medical professional, usually a licensed phlebotomist. This was permitted because the blood sample was considered “evanescent evidence.” In other words, evidence that would or could disappear if not collected in a timely manner. Other examples would be gunshot residue collection from the hands of a suspected short or fingernail scrapings from the hands of one suspected of sexual assault.
In a DUI arrest, because the human body dissipates or “burns off” the drugs or alcohol in its system fairly quickly, the sample was allowed to be collected without a search warrant because society (the People) had a right to that evidence before it disappeared.
That changed in 2013 when the U.S. Supreme Court handed down its decision in Missouri v. McNeely. The court said that the natural dissipation of blood alcohol was not, in itself, a sufficient exigency to permit a warrantless intrusion, although they did say some other exception – other than exigency – might apply.
So, no more forcible blood draws unless the police first obtained a search warrant. Because most DUI arrests are made at night, this involved a prosecutor waking up a judge so the police could obtained a search warrant telephonically.
Eleven states, including California, make it a crime to refuse to submit to a chemical test after a lawful DUI arrest. Two of those states presented the issue to the Supreme Court under the theory that the chemical sample was part of the “search incident to arrest” exception the Fourth Amendment warrant requirement.
Earlier this year, the Supreme Court answered that question in Birchfield v. North Dakota. The court ruled that police may now demand breath samples (but not blood) under threat of sanction for refusing) without a warrant incident to the arrest.
In California, the first sanction for refusing to provide a breath, or blood, sample is the suspension of your driver’s license by the Department of Motor Vehicles for a whole year. Then, if the District Attorney charges you with impaired driving, they can tack on the “refusal” allegation, which, if you are convicted, can add additional consequences to the sentence on your criminal matter.
It also allows them to have the judge instruct the jury about consciousness of guilt and then use that against you during their closing argument. It goes something like this:
Ladies and gentlemen of the jury, didn’t you find it helpful to know the defendant’s blood alcohol level was .0X points above the legal limit? I think you will agree that was a crucial piece of evidence in the case. Well, did you know the defendant didn’t want you to have that evidence? That’s right, s/he refused to provide a blood or breath sample as required by law and the police were forced to wake up a judge in the middle of the night to get a search warrant so you could have the evidence here in court today. When the judge reads you the jury instructions in a few minutes, s/he will explain that you may consider that refusal as consciousness of the defendant’s guilt! In other words, s/he knew s/he was guilty and tried to hide the evidence.
I hope you see by now there is no upside to refusing to provide the legally required blood or breath sample. So, you’re thinking, okay, I’ll go ahead and give them their stinking breath sample.
Well, not so fast. I’m telling you now and the police are supposed to tell you if you get arrested, that if you choose to give the breath sample there won’t be anything left. The machine will burn up the entire sample. If you want a sample preserved for re-testing (something I, as your attorney, am always going to do!), then you have to give the blood sample. A re-test will often show a discrepancy between my private lab and the police or sheriff’s lab.
If you see the wisdom of going ahead with the blood test, do not also give a breath test. The police may try to trick you by saying, “Even though you gave the blood, aren’t you interested to know what your blood alcohol level is right now? A breath test will give you instant results.”
Here’s the problem with that. If your breath sample comes out as a .12% and the police blood test says .12%, the prosecutor is going to argue the two tests together are more accurate than my lab which may report a lower blood alcohol level. So, instead of my lab versus their lab it becomes their two tests against our one.
If you ever have any question about this or any of my other blog posts, feel free to send it to me at RebeccaOcainLaw.com or by me calling, 24 hours a say, at 619-431-1076.
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.