Law Review: Police fail to inform drunk driver of loss of license for refusing blood test | SierraSun.com
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Law Review: Police fail to inform drunk driver of loss of license for refusing blood test

Jim Porter
Law Review
Jim Porter

If you are unfortunate enough to be pulled over for suspicion of being under the influence of alcohol or drugs, are you required to submit to a breath or blood test? What if you refuse? Read People v. Peter Balov.

SUSPECTED DRUNK DRIVING

After Peter Balov was arrested for suspected drunk driving, the arresting officer advised him that “per California law he is required to submit to a chemical test, either a breath or a blood test.”

Understanding he had to take a test, Balov chose a blood test, which showed a blood alcohol level above the legal limit.

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Balov argued the results of the blood test should be suppressed in court, arguing his consent was invalid because the officer had not explained the consequences of refusing breath or blood testing as required by Vehicle Code section 23612. That section requires a driver to be told that his or her failure to submit to a test will result in a fine and loss of their driver’s license.

CALIFORNIA’S ‘IMPLIED CONSENT’

A blood draw is a search subject to the Fourth Amendment requiring a search warrant or the driver’s voluntary consent to be searched.

To address that dilemma and prevent every driver from refusing to be tested, section 23612 provides that “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…” That is the so-called implied consent law. By driving on California’s roads, you consent to be tested if you are lawfully arrested for drunk driving.

LOSS OF LICENSE

NOT EXPLAINED

Most importantly for Balov, section 23612, as noted, also requires that the driver be told that his or her failure to submit to a test will result in a fine, loss of driver’s license (one year for first conviction) and mandatory imprisonment if convicted of driving under the influence. The gist of this case is that Balov was not informed of those consequences, he was merely told that he must take a test, either blood or breath.

Is Balov entitled to have the results of his blood test thrown out because he was not told of the consequences of refusing to be tested?

For example, if he had known of the consequences of refusing a test, Balov might have refused to take a test figuring his odds of convincing a jury that he was not driving under the influence would improve if the blood test was not entered into evidence.

COURT RULING

The Fourth District Court of Appeal upheld the trial court’s finding that the officer correctly told Balov he was required to submit to a breath or blood test, and while the statement was incomplete because Balov was not informed of the consequences of his refusal, the officer did not intend to deceive Balov. To be honest, I find whether the officer intended to deceive Balov irrelevant. He did not tell him of the consequences of refusing to take one of the tests which the law required.

Balov’s conviction of driving under the influence is upheld as he did not object to taking a test, even though the officer did not inform him of the consequences of refusing a test required.

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, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.


 

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