Jim Porter: Implied consent to be searched comes with driver’s license (opinion) | SierraSun.com

Jim Porter: Implied consent to be searched comes with driver’s license (opinion)

Jim Porter
Opinion

Today's case is somewhat complicated but of interest because it involves drunk driving and whether drivers are obligated to take intoxilyzer tests or have their blood drawn when stopped for suspected driving under the influence — even if the driver is unconscious.

DUI Crash

Marcus Arredondo crashed his Jeep Cherokee after leaving a social gathering in which he and most of his six passengers had been drinking. The accident left one passenger with a brain injury. Arredondo was taken to a hospital and while he was still unconscious, a phlebotomist drew his blood. Arredondo had a blood alcohol content of .08.

He was arrested and pled no contest to driving with a blood alcohol of .08 and driving without a license. He appealed claiming a violation of his Fourth Amendment right to be free of unreasonable searches and seizures.

Extracting blood from a driver, conscious or not, is a search, the kind which normally requires consent or a search warrant.

Implied Consent Law

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California's Vehicle Code Section 23612 recites that anyone who drives a vehicle in California is "deemed to have given his or her consent" to blood alcohol testing under specified conditions, and an unconscious person "is deemed not to have withdrawn his or her consent" to such testing.

Based on that code the blood draw was done and based on that code, the trial court determined that no search warrant was necessary for the blood draw from the unconscious Arredondo.

Section 23612 seems clear to me, but you can't always believe what you read.

Lose License for Six Months

In recognition that it would be unlawful to force drivers suspected of driving under the influence to take intoxilyzer tests or have blood drawn, and as forcible blood draws would be "unpleasant, undignified and undesirable," especially if attempted upon a belligerent inebriated person, the Legislature adopted laws to provide an incentive for voluntary submission to chemical tests like intoxilyzers and blood draws to eliminate the potential for violence inherent in forcible testing.

In California, to compel suspected drunk drivers to submit to a test for intoxication, a person loses their driver's license for a period of six months if they refuse to submit to a test for intoxication. Remember that.

Some obviously intoxicated drivers refuse to be tested for fear the test results will incriminate them. The consequence is their licenses are automatically revoked for six months.

Unconscious Driver

Back to The People v. Marcus Arredondo. Arredondo was unconscious so clearly he did not expressly consent to have his blood drawn, yet the Vehicle Code on its face concludes that he "impliedly consented," making the blood draw legal and incriminating evidence against him.

The Court of Appeal had concerns about an unconscious driver consenting to a sobriety test, and ultimately concluded there was time for the arresting officer to have obtained a search warrant, and he was required to do so.

Implied consent merely because Arredondo obtained a driver's license is not appropriate for a later search by a blood draw when the driver is unconscious.

So it seems Arredondo was saved by the Fourth Amendment, the blood draw taken without his express consent was improper. But as it turns out, that is not the case.

Good Faith Exception

Arredondo was found guilty because of the so-called "Good Faith Rule" where when an officer reasonably believes he was allowed to search, because Vehicle Code Section 23612 deemed Arredondo implicitly consented, then the officer is allowed to make a mistake even if implied consent was later rejected by this Court.

So as the Court of Appeal wrote: "We therefore conclude that although the search was unconstitutional, its fruits were admissible under the "Good Faith Exception." DUI upheld.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno, Nevada. Jim's practice areas include:real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.