California is not unique in having “implied consent law”, which is found in California Vehicle Code section 23612. The “implied consent law” requires drivers to submit to a chemical test upon arrest for Drunk Driving in Los Angeles. Many police agencies in California, including CHP, enforce “implied consent laws” by either threatening drivers with harsher punishment if they refuse to submit to a chemical test or by forcing Alcohol Blood Test (a very common practice in Orange County for instance).
Once DUI defense attorney raises a 4th amendment issue, by alleging that the search was warrantless and therefore presumptively illegal, the burden shifts to the prosecution to show an exception to the search warrant requirement. Without doubt, in most DUI cases in Los Angeles during the search and seizure motion, the prosecution will introduce evidence of consent to submit to a chemical test as part of its attempt to shift the burden back to defense. The prosecutor however has to prove that the consent to submit to a chemical test was freely and voluntarily given. If the police exerted coercion to obtain consent – the chemical test is inadmissible, which is often a critical step to dismiss your DUI in court. Consent to alcohol blood test in Los Angeles DUI cases have to be freely given. Without freely given consent, the Alcohol Blood Test can be taken with a warrant or with some exceptions to the warrant requirements.
Legally, it seems there is no substantial difference between voluntary consent to make a statement and voluntary consent to search (Schneckloth v. Bustamonte (1973) 412 US 218, 223- 4, 227). The court of Appeal in People v. Ramirez), relying on U.S. v. Carbajal, (9 circuit decision) decided that a five prong test determines whether consent was voluntary.
(1) whether the person was in custody;
(2) whether the arresting officers have their guns drawn or exhibit other weapons;
(3) whether Miranda warnings have been given;
(4) whether the person was told he has a right not to consent;
(5) whether the person was told a search warrant could be obtained.
Most important in this 5 prong test is element 4 – “whether the person was told he has a right to consent”. Compliance with U.S. constitution is only possible if a person told that he has a right not to consent. Note that California Vehicle Code section 23612 states that drivers are deemed consented. How then can a driver be deemed consented if he has a right not to consent!?
CVC 23612 consent to alcohol blood test in Los Angles DUI seems not optional.
Thus, California implied consent law found in CVC 23612 contradict federal law. Because Federal law supersede California law when US Constitution is involved, consent to blood test in Los Angeles DUI cases can not be implied. Careful illustration of such conflict should convince California trial courts to suppress blood test results, especially in borderline cases (such as where consent was obtained by possible coercion). In other words, it should be no brainer that when an officer tells a driver that she has no right to consent without adverse consequences, the consent becomes involuntary under Ramirez analysis.
This is an example of fairly complicated legal argument. Skillful Los Angeles DUI lawyer will help you defend your DUI case by convincing courts to suppress evidence of DUI. To talk to experienced DUI attorney call directly anytime at (818) 921 7744 . We can help you save your license, your record and your freedom. Our prices are very competitive and we accept any reasonable payment plans. Call our office now.