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Implied Consent Law in California – Educational Lecture

implied consent educational lecture by DUI lawyer Jon ArtzThis is a brief educational lecture about the implied consent law in California and how blood tests can be excluded from evidence. In the ordinary course of events, a person is investigated, field sobriety tests are administered, and the person is then handcuffed and told, pursuant to California VC 23612, implied consent, that he must submit to a chemical test and the choice is blood or breath.

Now, if the officer says only that advisement, and doesn’t give any advisement about the option of refusing, many times an officer, pursuant to that same statute, is supposed to say, “and if you refuse to take a chemical test, you will lose your license for a year, or longer if you have prior convictions.” That at least suggests the option of refusal.

If the officer just says “you are required by law to submit” and the arrestee says, “oh ok, I’ll submit the blood”, the argument is that, that advisement and submission is not consensual.

The United State Supreme Court cased called McNeely, in 2013, stated that the mere fact that there is metabolism, that the evidence is being destroyed over time, does not mean that the cops have the right to take a blood draw, and that they need to get consent. In that case, McNeely refused to the blood draw. The cops directed the nurse to do it anyhow, and McNeely cooperated, meaning he put his arm out, and the US Supreme Court held that warrantless seizure of his blood was unconstitutional. It violated the 4th amendment protection against unreasonable searches.

Segway ahead another 4 years, in 2017, the US Supreme Court again addressed the issues as to warrantless searches, in a case entitled Birchfield V North Dakota. That decision involved 3 petitioners. One who was punished for refusing a test; the court held that was unconstitutional; you can’t punish someone when he has the constitutional right to not submit to the search.

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A second one, Bailand, who was the petitioner, and the court said, well, he submitted to a breath test and incident to a lawful arrest, that search is OK. No quarrel with the admissability of the breath test.

The third petitioner, a man named Bailand, he submitted to a blood draw, after being told that he was required by law to do so, and the court hailed that, they remanded the case back to North Dakota to find out if that decision was voluntary consent or acquiescence to authority.

So the argument here in California, when the officer says, “you are required by law to submit to a blood or breath test” and he replies “blood”, is that there is no voluntary, knowing consent, and that the blood test is not admissable.

Over the last 18 months I have won 4 or 5 of those motions, and had great deals made as a result of attacking the prosecutions best evidence. Meaning, the blood alcohol content level.

So, the point of this is that folks who have submitted to a blood draw, need competent counsel, so that they can be fully represented in court, and secure the benefits of our constitution, and either get their case dismissed or presumably get the charges reduced.

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