IMPLIED CONSENT LAW UNDER FEDERAL AND CALIFORNIA STANDARDS.

      All 50 States have implied consent law requiring those arrested for driving under the influence of alcohol to take a test. If the driver refuses to take a test, they risk losing your driver’s license unless a good legal explanation is provide, but there rarely isone.  These laws have survived Constitutional scruitny every time they have been challenged.

      California’s implied consent law is Cal. Veh. Code §23612, which provides:

(a)(1)(A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.

(B) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or urine for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.

(C) The testing shall be incidental to a lawful arrest administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153.

(D) The person shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153, and (i) the suspension of the person’s privilege to operate a motor vehicle for a period of two years if the refusal occurs within seven years.

a)

The Genesis of State Implied Consent Laws.

      Implied consent laws found their genesis in state law challenges casds where an involutary blood sample was taken, and that eventually reached the United States Supreme Court in Breithaupt v. Abram (1957) 352 U.S. 432, addressing the involuntary taking of a blood sample.   In a New Mexcio accident that killed three, the petitioner was taken to the hoispital where an officer ordere dhis blood sample to be taken.  The petitioner was ultimately convicted of involuntary manslaughter, and later appealed on the basis that his blood sample violated his U,S.Const. Amend, XIV due process, Amend, IV search and seizure rights, and Amend, V privilege against self-incrimination from compelled testimony. The Court found that there was nothing “offensive” or “brutal” that occurred in the seizing of the blood sample, and the seizure did not involve conduct that shocked the court’s conscience. Breithaupt, 352 U.S. at 437.   From  this case the court suggested an implied consent law should be adopted by the states in a footnote.

It might be a fair assumption that a driver on the highways in obedience to a policy of the State, would consent to have a blood test made as a part of a sensible and civilized system protecting himself as well as other citizens not only from the hazards of the road due to drunken driving, but also from some use of dubious lay testimony.   Id. at 165, fn. 2

      The next U.S Supreme Court challenge to involuntary blood tests was a California case,

Schmerber v. California (1966) 384 U.S. 757. Just as in Breithaupt, Schmerber invovled the involuntary taking of a blood sample after a DUI arrest.  Here, Schmerber was conscious and objected to the taking of his blood on the advise of counsel.   After his conviction for DUI, Schmerber appealed on the same constitutional grounds of U,S.Const. Amend, XIV due process, Amend, IV search and seizure rights, and Amend, V privilege against self-incrimination from compelled testimony.  It reached the Court, which in a 5-4 decision upheld the constitutionality of the taking of blood samples in DUI cases.  “That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.” Id. at 772.  

b)

The Enactment of State Implied Consent Law and Subsequent Constitutional Challenges..

        Both Breithaupt and Schmerber opened the constitutional door for implied consent statutes  The first constitutional challenge to implied consent laws was in South Dakota, which also eventually landed with the U,S, Supreme Court in South Dakota v. Neville, 459 U.S. 553 (1983). The Petitioner Neville was detained after a traffic violation and the officers could smell alcohol on his breath, After failing two sobriety tests and they later learned that he had already lost his license due to a prior DUI conviction.  Pointing out that he was “too drunk” to take a blood test and admitted he could not pass it, he then refused to give consent. Neville, 459 U.S. at 555 and fn. 2.  The Circuit Court excluded the evidence and the South Dakota Supreme Court affirmed, stating that such evidence would constitute a violation of the defendant’s Fifth Amendment right against self-incrimination. However, the United States Supreme Court reversed, saying:

We hold, therefore, that a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.  Neville, 459 U.S. at 564.

      There have also been challenges to implied consent laws on a due process basis at the state level. Those courts finding no constitutional violation are: State v. Piddington (Wisc. 2001)623 N.W. 2d 528.  Other state courts have also found that implied consent laws do not offend due process: Alaska: Jensen v. State (Alaska 1983);667 P.2d 188  Arizona: Campbell v. Superior Court (Ariz. 1971)479 P.2d 685; Illinois: People v. Griffith (Ill. 1987) 506 N.E.2d 430; Nebraska: State v. Manley (Neb. 1972) 202 N.W.2d 831.  Some courts have allowed for a possible violation. Alaska: Whitesides v. State (Alaska 2001) 20 P.3d 1130 (due process required the licensing agency to hold an in-person hearing rather than a telephone hearing); Texas: McCambridge v. State Texas Crim. App. 1986) 712 S.W. 2d 499, 507 ((a violation of due process was possible if Miranda warnings coupled with the implied consent admonition legitimately confused the person arrested;) It is good practice for DUI defense lawyers to demand in in-person hearing for a driver’s license suspension hearing.  In California that is done by making an in writing request for a hearing within 10 days pursuant to Cal.Veh.Code §13558(a).   

      State constitutional claims that implied consent laws constitute a violation of the right against self-incrimination have also failed. Texas Thomas v. State (Texas Crim. App. 1986) 723 S.W.2d 696; 705;  Alabama: Hill v. State (Alabama 1979) 366 So.2d. 318. Indiana: Davis v. State (Indiana 1977) 367 N.E.2d 1163  

      California places a similar burden on one who decides not to take a chemical test after an arrest for driving under the influence of alcohol and or drugs. A standard California jury instruction allows the jury to consider whether the refusal indicates a consciousness of guilt or not.  “If you find that the defendant was offered and refused a choice of a blood, urine, or breath sobriety test after [he] [she] had been made aware of the nature of the tests and their purpose, that refusal is not sufficient, standing alone and by itself, to establish the guilt of the defendant but it is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether defendant is guilty or not guilty. The weight to which this circumstance is entitled and whether or not that conduct shows a consciousness of guilt are matters for your determination.” CALJIC 16.835 (Liquor Influenced Driving—Refusal to take Sobriety Test—Consciousness of Guilt).

      Some state courts have also declined to find that the taking of a blood-alcohol sample pursuant to an implied consent law constitutes an illegal search and seizure. See, e.g., State v. Newton (Oregon 1981) 636 P.2d 393; Illinois: People v. Kruger (Ill. 1991) 567 N.E.2d 717; Ohio: Watford v. Bureau of Motor Vehicles (Ohio 1996) 674 N.E.2d 776 ;  Oregon: Pooler v. MVD, (Oregon 1988) 55 P.2d 701; Some state courts have even declined to require proof that an arrest was lawful when it comes to administrative suspensions in driver licenses hearings. [See, e.g., Motor Vehicle Administration v. Richards (Maryland 1999) 739 A.2d 58;  Riche v. Director of Revenue (Mo. 1999) 987 S.W.2d 331.    

      However, some states have reached a different conclusion. See People v. Kruger (Ill. 1991) 567 N.E.2d 717; Ohio: Watford v. Bureau of Motor Vehicles (Ohio 1996) 674 N.E.2d 776 Oregon: Pooler v. MVD (Oregon 1988)755 P.2d 701.  In California the lawful arrest requirement is a legal prerequisite to the implied consent statute. Cal. Veh. Code §2361(a)(1)(C) “The testing shall be incidental to a lawful arrest administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153.”  

c)

Challenges to Law Enforcement Compliance with State Implied Consent Laws.

      Some DUI defendants have been successful in attacking law enforcement’s compliance with the implied consent law of the state they were arrested in; coth in criminal and administrative proceedings.

      Challenges based upon technical and procedural mistakes have been largely successful:  Georgia: Carthon v. State (Georgia 2001) 548 S.E.2d 649 [delay in giving the warnings has been held to be a failure to strictly adhere to the implied consent law]; Hawaii: State v. Wilson (Hawaii 1999) 987 P.2d 268 [blood test suppressed because of an improper implied consent admonition.];  Mabus v. Blackstock (Utah 1999) 994 P.2d 1272, [defendant’s driver’s license reinsated due to a failure of timely service of a notice of intent to revoke the driver’s license]; Petrocsko v. DOT, Bureau of Driver Licensing (Pa. 1998) 745 A.2d 714  and Village of Lincolnshire v. Follensbee,(Ill. 2000) 740 N.E.2d 534, both [ refusal to sign a hospital liability release form as a precondition to a blood test was not a refusal of consent to the test]; Mabus v. Blackstock (Utah 1999)994 P.2d 1272, [defendant’s driver’s license reinstated due to a failure of timely service of a notice of intent to revoke the driver’s license]; Glastetter v. Director of Revenue (Missouri 2001)37 S.W.3d 405, [18 minute delay after the reading of the implied consent admonition did not constitute a refusal to take a test when the driver agreed to take a test after obtaining legal advice to take a test]; Commonwealth Department of Transportation v. O’Connell (Pa. 1989); 555 A.2d 873 and Wright v. State (Ark. 1986) 703 S.W.2d 850. [Defendant’s legitimate confusion as to whether or not he or she may remain silent (and not verbalize a choice of a chemical test), such conduct may not constitute a refusal.]

      In a federal court case involving California’s implied consent law was challenged on 4th Amendment grounds in Nelson v. City of Irvine (9th Cir. 1998) 143 F.3d 1196.  Nelson was a Title 42 U.S.C. §1983 case challenging the constitutionality of the implied consent, and specifically on whether a law enforcement officer’s failure to advise the defendant of his option to take either a blood, breath or urine test pursuant to Cal.Veh.Code §23157 also violated U.S. Const. Amend. IV. The Nelson Court held that the failure to advise DUI arrestees of their choice of tests appears to violate the California implied consent statute, but such a failure does not violate the Fourth Amendment's reasonableness requirement.  Id. at 1203.  

d)

State Determinations of Refusal to Take the BAC Test.

      Certain delay tactics used by DUI suspects upon arest are usuually unsuccessful in avoiding a refusal to take a test. The exception has been a delay to contact the suspects attorney is not a refusal.  Equivocation about taking a test has resulted in a refusal charge. Wolf v. Commissioner of Motor Vehicles (Connecticut 2002) 797 A.2d 567;  However, a failed but good faith attempt to complete a breath test was held not to constitute a refusal. People v. Davis, (2005) 797 N.Y.S.2d 258.  Conditional consent equals a refusal to take the test. Zimmerman v. Director of Revenue (Mo. 2002) 72 S.W.3d 634; Rogers v. Director of Revenue (Mo. Ct. App. 2006)184 S.W.3d 137.  However, in a California case a successful argument was made that a condition imposed by the subject was within the statutory scheme.  Ross v. Department of Motor Vehicles (Ct. App. 1990) 219 Cal.App.3d 398, 402.   Even if a DUI suspect changes their mind after initially refusing to take the test, it is held to be a refusal to take the test.  Dunlap v. Department of Motor Vehicles, 156 Cal. App. 3d 279, 283 (1984).   Florida and New Mexico have rules allowing an initial refusal to take the test to recant if: It is a clear unequivocal recantation; it takes place within a reasonable time after the refusal; the equipment is still available, the test is still be capable of being accurate; permitting the test would not result in any substantial inconvenience to the police; and the suspect must have been under continuous observation since the arrest.  Larmer v. Det. Of highway Safety & Motor Vehicles (Fla. 4th DCA); 522 So.2d 941; State v. Suazo (N.M. 1993)877 P.2d 1088.