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The future of implied consent to DUI testing in California

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All fifty states utilize implied consent laws to require motorists arrested on suspicion of driving under the influence ("DUI") to submit to a chemical test to determine the amount of alcohol and/or drugs in her/her system.  The blood alcohol concentration ("BAC") results are the best evidence of intoxication level to be used in a subsequent DUI prosecution.  

Earlier this week, the Supreme Court ruled on three consolidated cases brought by three different motorists who challenged the criminal penalty for refusing to consent to a chemical test of their breath, blood, or urine.  The post I wrote summarizing these three cases can be found here.  

In Minnesota and North Dakota (and 11 other states), it a separate crime to refuse to a chemical test.  California does not make refusal a separate crime, but instead it can be used as a sentencing enhancement if the motorist is convicted of a DUI.  Now that Birchfield/Bernard/Beylund hold that a warrant is required for all chemical testing of blood, the California legislature will need to modify the current law (VC 23612) to comport with the Supreme Court's ruling.  
California law enforcement officers will also need to revise their current admonition that threatens enhanced penal consequences if a blood test is refused. While the legislature is working on revising the statute, law enforcement will need immediate guidance on how to proceed since motorists continue to drive under the influence of alcohol and/or drugs at alarming rates.

Birchfield, et.al., hold that warrantless breath tests incident to lawful arrest are constitutional and can be criminally penalized if refused.  Warrantless blood tests (and I'm assuming forced urine samples...I'm not sure how to force a urine sample...) are unconstitutional and a motorist can't be criminally penalized for refusing.  That being the situation, law enforcement can continue to advise motorists arrested for DUI that California's implied consent law requires him/her to submit to a Breathalyzer test.  If an officer prefers a blood test, he/she can request the motorist's actual consent.  If actual consent is refused, in addition to the mandatory Breathalyzer test, the officer can seek a warrant to compel a blood test.

VC 23612(a)(2)(C) gives law enforcement the authority to request a blood test if, after a motorist submits to a Breathalyzer test, the officer has "reasonable cause to believe that the person was driving under the influence of a drug or the combined influence of an alcoholic beverage and a drug and if the officer has a clear indication that a blood test will reveal evidence of the person being under the influence."  I believe law enforcement can continue to request a blood test after a breath test via actual consent (ie: the officer can advise the motorist that a blood test is not required under the law, but he/she can consent to one.) If an officer does not obtain actual consent, he/she can seek a warrant.  I think this section is important considering that the legalized use of marijuana is most likely coming to California.  As far as I know, there is no Breathalyzer test that measures the amount of marijuana in a motorist's system.  Furthermore, addiction to prescription pain killers is a huge problem nationwide. The best method of determining the type/amount of prescription narcotics in the body is via blood (again, as far as I'm aware....)

The Supreme Court's decision recognizes the importance of the states' use of implied consent laws, while protecting privacy interests. Warrantless Breathalyzer testing is an important tool utilized by law enforcement in an effort to keep impaired drivers off of the roadways and to punish them in a future DUI prosecution.  The legislature and law enforcement can continue to require arrested motorists to consent to breath testing and punish them for refusing.  Language relating to mandatory blood draws will need to be removed.  An officer can continue to request a motorist's actual consent, and if refused, can seek a warrant to compel a blood draw.  


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