Vehicle Code section 23612 governs the “implied consent” law in California. According to this statute, a person driving a motor vehicle on a California roadway 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 alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Vehicle Code section 23152 (“Driving Under the Influence”) and 23153 (“Driving Under the Influence Causing Injury”). Failure by a driver to submit to the chemical testing at the request of a law enforcement officer with reasonable cause to believe that the driver was driving in violation of Vehicle Code section 23152 or 23153 will be deemed a “refusal” and will result in a longer driving privilege suspension by the Department of Motor Vehicles (“DMV”), sentence enhancements in court, greater fines, and mandatory imprisonment under certain circumstances.
Prior to making a determination of whether to submit to the chemical test, the law enforcement officer must provide mandatory admonishments to the driver. The driver must be told that his or her failure to submit to, or failure to complete, the required breath or urine testing will result in a fine and mandatory imprisonment if later convicted of a violation of Section 23152 or 23153 in court.[1] Further, the law enforcement officer must inform the driver that his or her failure to submit to, or failure to complete, the required breath, blood, or urine test will result in the administrative suspension by the DMV of the person’s privilege to operate a motor vehicle for a period of one year and the law enforcement officer must also provide further admonishments regarding longer suspension dates if the person has prior refusals.
If a person is lawfully arrested for driving under the influence of alcohol, the person has the choice of whether to submit to a blood or breath test, and the officer must advise the person of this choice. If a person is lawfully arrested for driving under the influence of drugs or the combined influence of alcohol and drugs, the person has the choice of whether to submit to a blood or breath test, and the officer must advise the person of this choice. However, when the officer has reasonable cause to believe the person was driving under the influence of a drug or the combined influence of an alcoholic beverage and a drug, and the driver chooses to submit to a breath test, the law enforcement officer can also request that the driver submit to a blood test. Under this circumstance, the officer must advise the person that he or she is required to submit to this additional test.
Recently, in People v. Lopez (2020) Cal. App. LEXIS 198, the California Court of Appeal confirmed that when a defendant is only suspected of driving under the influence of a drug, the implied consent law still requires the law enforcement officer to inform the defendant that he or she could choose between a breath or a blood test. If, however, the driver chooses to undergo a breath test, the officer can then request that the driver undergo the additional blood test if the officer has reasonable cause to believe the driver is under the influence of drugs.
The law surrounding implied consent is confusing and ever-changing. Often, law enforcement officers fail to provide the statutorily required admonishment or incorrectly inform the drivers of their rights and testing choices. Thus, if your driving privilege has been stayed pending an Administrative Per Se Hearing with the Department of Motor Vehicles based on your refusal to submit to a chemical test or if you have been charged with an enhancement based on this refusal, seeking legal advice regarding your options can assist you in fighting this charge! The attorneys at Escovar Law, APC are here to help! Call now for a free telephonic consultation at 626.577.7700!
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[1] The Supreme Court in Birchfield v. North Dakota (2016) 136 S.Ct. 2160, determined that the threat of imprisonment for refusing to submit to a blood draw was unconstitutional. Thus, a defendant is only subjected to imprisonment for refusing to submit to a breath or urine test if later convicted of a Vehicle Code section 23152 or 23153 offense.