Hopefully you will never need the advice garnered from today’s Law Review regarding submitting to a blood or breath test for alcohol.

BORDER PATROL ARREST

A little past midnight and about fifteen yards north of the Mexican border, Miguel Ponce of the Border Patrol sat in his parked cruiser. He was on the lookout for people cutting through the border fence and running to large vehicles, like minivans, that would take them away.

A black minivan drove into this restricted area which was off limits to the general public. The minivan driver saw Ponce’s car and abruptly did a U-turn and burned rubber taking off at a “high rate of speed.” The driver, Steve Luis Elmore, stopped. He smelled of alcohol. Elmore’s eyes were bloodshot and watery, in fact he apparently had urinated on himself.

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SUBMIT TO A BLOOD OR BREATH TEST OR LOSE YOUR LICENSE

Elmore was warned that his license would be suspended or revoked if he refused to take a blood or breath test. He refused. Per Vehicle Code section 13353 the DMV suspended Elmore’s drivers license for one year for refusal to submit to a chemical test for alcohol.

That, my friends, is the sole purpose of looking at this case: to let y’all know that if you refuse to submit to a blood or breath test, your drivers license will be suspended for one year.

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DRIVER CHALLENGES DMV

Elmore challenged his drunk driving arrest and loss of his license on two grounds. First was that Ponce’s temporary investigative stop of Elmore was illegal. The court of appeal succinctly determined that claim was incorrect. Ponce reasonably suspected the minivan was involved with illegal smuggling, and was justified in his decision to stop it and investigate.

Elmore’s second argument was that Ponce failed to read a particular sentence to him when admonishing him that his refusal to submit to chemical testing would result in a license suspension. Again, the court of appeal determined the particular missing language was not pertinent given that Ponce warned Elmore his drivers license would be suspended if he refused chemical testing.

The court discussed other cases where the license suspension was ruled invalid when an officer failed to admonish the driver that refusal to submit to a test would result in a suspended license. In one case a suspected drunk driver was advised that his license “could” be suspended which was ruled too weak as the admonition should have been with the word “would” be suspended. None of those cases would help Elmore whose license suspension was upheld for one year.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, 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