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Choice of Tests

JURY INSTRUCTIONS:Special Instructions

V.C. §23612(a)(d) People v. Alvarado 181 Cal.App.3d Supp.3

You are instructed that the law provides that the Defendant had the right to choose whether the chemical test shall be of his blood or breath, and the officer shall advise the person that he has that choice [and if a test was requested by the Defendant, the arresting officer shall have that test performed].

If you find that the above requirements of the Vehicle Code were violated by the officer, you may consider that violation as a factor bearing on the credibility of the officer and the accuracy of the breath test administered by the officer.

Police officers are having a difficult time deciding what words to say to someone under arrest for DUI. The U.S. Supreme Court has rendered two decision over the last four years that impact the constitutionality and lawfulness of blood draw. A blood draw in Caifornia used to be acceptable due to the loss of evidence (metabolism). However, in a case called McNeely, the U.S. Supreme Court held that the destruction of evidence did not provide an exception to the warrant requirement of the Fourth Amendment. The blood test result was excluded from evidence. Then, in 2016, the U.S. Supreme Court decided Birchfield in which it held that a b lood draw is not admissible incident to an arrest, although a breath test is lawful when a person is arrested for DUI. So, when the officers tell the arrestee that he is required by law to submit to a blood or breath test, it is complicated and I have argued successfully that the blood test results are not admissible because they violate the Fourth Amendment.

The above instruction is requested when the cop decides to choose the test for the arrestee and does not give a choice of test.