Exclude Offering the P.A.S. Test

MOTIONS IN LIMINE:Other Creative Motions

I. INTRODUCTION

Defendant was stopped for a violation of V.C. 24409 (use of multiple beams) and V.C. §24250 (lighting during darkness) and then investigated for driving under the influence. Prior to an arrest, but during the detention (“not free to go”) the officer asked Defendant if he was willing to submit to a Preliminary Alcohol Screening (P.A.S.) test. The officer told Defendant he “was not required by state law to submit to the test.” Instinctively, exercising his Fourth Amendment right, Defendant declined to take the PAS test. ¹ The defendant will not raise any issues concerning the PAS advisement, and it is not an issue and not relevant.

The express right to refuse a P.A.S. test is granted by V.C. 23612(i). Also when the officer asked Defenant to submit to a PAS test, he was asking for consent to a warrantless search for the amount of alcohol the subject’s blood. Said consent is not required and there is no consent expressed or implied by law. Thus, the police request to search Defendant for the amount of Alcohol in his blood by way of PAS test and his exercise of his right to not submit is inadmissible. The exercise of the privilege provided by the Fourth Amendment cannot be used against the defendant.

II. THE DEFENDANT HAS THE STATUTORY RIGHT TO REFUSE THE PAS TEST

Vehicle Code §23612(i) reads in pertinent part:

“If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the Office in determining if that person is under the influence of alcohol… and the officer shall advise the person… of the person’s right to refuse to take the Preliminary alcohol screening test.”

The prosecution cannot advise a person that it is permissible to refuse the test and then penalize that choice at trial.

III. THE UNCONTROVERTED LEGAL PRINCIPLES TO BE APPLIED

The Fourth Amendment to the United States Constitution states that “The right of the people to be secure in their persons, . . . against unreasonable searches and seizures, shall not be violated…” This is the cornerstone of any inquiry regarding governmental acquisition evidence from the accused. To determine this matter, certain immutable principles apply.

1. “For the Fourth Amendment protects people, not places… what he seeks to preserve as private, even in an area accessible to the public, may be Constitutionally protected.” (Katz v. United States 389 U.S. 347, 351-352 (1967) [internal citations omitted].)
2. “… searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment –subject only to a few specifically established and well-delineated exceptions.” (Katz v. United States 389 U.S. 347, 357 fns. omitted (1967).). It is a cardinal principle that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable.” (Mincey v. Arizona (1978) 437 U.S. 385, 390.)
3. “It is not disputed that the administration of a breath test is a search within the meaning of the Fourth Amendment and therefore subject to the requirements of that amendment.” (Emphasis added.) (Burnett v. Municipality of Anchorage 806 F.2d 1447, 1449 (9th Cir. 1986). [Citation omitted.].)
4. “In considering [warrant requirement exceptions], we must not lose sight of the Fourth Amendment’s fundamental guarantee as stated by Mr. Justice Bradley’s admonition in his opinion for the Court almost a century ago in Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746:
   

   ‘It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that Constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the Constitutional rights of the citizen, and against any stealthy encroachments thereon.’” (Coolidge v. New Hampshire 403 U.S. 443, 453-454 (1971).)

5. There are many cases on the subject of exigent circumstances permitting the withdrawal of a blood sample in a drunk driving case. A search warrant is not required if the defendant is lawfully under arrest and withdrawal of the blood is done in a medically approved manner. See Schmerber v. California (1966) 384 U.S. 757; People v. Superior Court (Hawkins) (1972) 6 Cal. 3d 757; Schneckloth v. Bustamonte (1973) 412 U.S. 218. Here, Mr. Hicker was not under arrest at the time of the proposed search by way of a PAS test. Also, there was no exigency in this case because the police timely secured evidence of B.A.C. as a result of the blood draw obtained after arrest pursuant to “implied” consent.

IV. THERE IS A PRIVILEGE TO BE FREE FROM COMMENT UPON ASSERTION OF A CONSTITUTIONAL RIGHT.

There is a privilege to be free from comment upon the assertion of a Constitutional right. See Jenkins v. Anderson (1980) 447 U.S. 231.

An individual’s refusal to consent to a warrantless search (e.g. an entry of his residence), may be open to various interpretations and is not encouraged, however the assertion of the right itself cannot be a crime nor can it be evidence of a crime. (Camara v. Municipal Court (1967) 387 U.S. 523, 528-529; District of Columbia v. Little (1950) 339.) The Fourth Amendment protects a person’s ultimate authority to passively withhold consent to a government intrusion, despite any legal justification there may be for it.

A defendant may not be “penalized” when he does not agree to a pre-arrest search, especially when the right to refuse a PAS test is provided by V.C. 23612(i).

In People v. Wetzel (1974) 11 Cal.3d 104, 113 Cal.Rptr. 32, the California Supreme Court reasoned that when a citizen does nothing more than merely deny consent to an officer who is seeking permission to conduct a search without a warrant, it is settled that his denial of consent cannot be the basis for any criminal penalty. The essence of the Wetzel case is that legal justification for the search without a warrant, if any, does not make resistance to the search, in the form of mere refusal to consent, an act that can be punished. The court stated its holding in Wetzel, id., at 110 as follows:

“She had the right to withhold consent to enter and, as long as entry was not sought on any other ground than with her consent, she committed no impropriety and certainly not a violation of section 148. (See District of Columbia v. Little (1950) 339 U.S. 1, 5-6, 94 L.Ed. 599, 602-603, 70 S.Ct. 468; Miller v. United States (5th Cir. 1956) 230 F.2d 486, 487-488. (Emphasis added.)

In People v. Keener (1983) 148 Cal.App.3d 73 (Keener), officers testified “how they tried to coax Keener out of the apartment” and how he responded. (Id. at p. 78.) “Evidence of the siege was offered to show a consciousness of guilt; i.e., if defendant was not guilty he would have immediately surrendered.” (Ibid.) Keener held that admission of evidence of the defendant’s refusal to consent to a warrantless entry of his residence violated the privilege to be free from comment upon the assertion of a Constitutional right. (Ibid.)

Keener derived the privilege primarily from two opinions of the United States Supreme Court: Griffin, California (1965) 380 U.S. 609 (Griffin) and Doyle v. Ohio (1976) 426 U.S. 610, 619 (Doyle). Griffin, supra; precluded the prosecution from commenting on the silence of an accused who asserts his right to remain silent during the trial. (Id at p. 614.) Doyle held that the due process clause of the Fourteenth Amendment forbids prosecutors from using a defendant’s post arrest, post Miranda’ silence for impeachment purposes.

Keener explained that “Presenting evidence of an individual’s exercise of a right to refuse to consent to entry in order to demonstrate a consciousness of guilt serves to punish the exercise of the right to insist upon a warrant. It is of no consequence that police had a right to enter without a warrant here, nor does it matter that defendant spoke to the police during the siege. ‘The right to refuse [entry] protects both the innocent and the guilty, and to use its exercise against a defendant would be, as the court said in Griffin, a penalty imposed by courts for exercising a Constitutional right’ (United States v. Prescott [(9th Cir. 1978)] 581 F.2d 1343, 1352.)” (Keener, supra, 148 Cal.App.3d 73, 79.)

Conclusions similar to Keener have been reached in many other jurisdictions that have addressed similar issues. (Eg., State v. Palenkas (Ariz. Ct. App. 1996) 933 P.2d 1269, amended by I CA-CR 95-0752, 1996 Ariz. App. LEXIS 267 (Dec. 19, 1996) [prosecutor’s use of defendant’s contacting his attorney and his invocation of his right to refuse a warrantless search as evidence of his guilt denied due process and required a new trial]; United States v. Thame (3d Cir. 1988) 846 F.2d 200, 206 [error for the prosecutor to argue that defendant’s refusal to consent to search of his bag constituted evidence of his guilt); United States v. Tare (9th Cir. 1976) 540 F.2d 961 [prosecutor’s comments on defendants’ refusal to consent to a search of their trucks was “misconduct”]; United States v. Rapanos (E.D. Mich. 1995) 895 F.Supp. 165, 168, reversed on other grounds, 115 F.3d 367 (6th Cir. 1997) [error to insinuate that defendant’s refusal to consent to warrantless entry onto his land was evidence of concealment of a crime]; Padgett v. State (Alaska 1979) 590 P.2d 432, 434, [right to refuse to consent to warrantless search of car would be effectively destroyed if, when exercised, it could be used as evidence of guilt].)

The defendant’s words and mental processes involve his Fifth Amendment Right. The words cannot be improperly used for the not very probative purpose of showing he had a consciousness of guilt. Keener supra 148 Cal.App.3d 73 at 78. In effect, such evidence would punish the defendant for exercising his right to not consent to the search (Keener, supra, 148 Cal.App.3d 73, 78).

V. ADDITIONAL BASES TO EXCLUDE OFFERING THE PAS TEST

1. The admission of the evidence of the offering of the PAS Test and the response thereto by necessity will call for an explanation by the defendant, thereby denying the defendant his right not to be compelled in a criminal case to be a witness against himself as guaranteed by the Fifth Amendment of the United States Constitution. See Miranda v. Arizona (1966) 384 U.S. 436, 460 11… the privilege [against self incrimination] is fulfilled only when the person is guaranteed the right to remain silent unless she chooses to speak in the unfettered exercise of his/her own will.” The prosecution’s use of the fact that the defendant did not consent to the PAS test is analogous to commenting on the defendant’s exercising his right to remain silent in the face of interrogation, which is prohibited by Miranda, id. at 468.
2. Defendant was detained (“not free to go”) and never waived his “Miranda” rights prior to the questioning by the police officer about whether he would submit to a PAS test which, of course, required a response by the subject. Accordingly, the defendant’s response to the PAS Advisement is inadmissible due to the Fifth Amendment and must be suppressed.
3. Similar to the Fifth Amendment’s protection from being required to give incriminating testimony which prevents a prosecutor from commenting upon the post-arrest silence of a defendant, the right to remain silent carriers an implicit assurance that silence will carry no penalty. Doyle v. Ohio (1976) 426 U.S. 610, 619; United States v. Newman (1991) 943 F.2d 1155, 1157.
4. The PAS advisement and any response thereto is irrelevant or, in the alternative, such evidence is of little probative value and substantially outweighed by those factors as enunciated in Evid.C. §352.

VI. CONCLUSION

Defendant has the statutory right to decline the proposed search by way of the PAS test pursuant to V.C. 23612(i). There was no consent, expressed or implied, to that search. A passive refusal to not consent to a proposed warrantless search cannot be admitted into evidence. The Court must exclude the offering of the PAS test and the citizen’s response thereto.