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Exclude Trombetta Advisement and Response by Defendant

MOTIONS IN LIMINE:Other Creative Motions


The Defendant was arrested for d.u.i. and thereafter submitted to a breath test to measure blood alcohol content (B.A.C.). He/she had cooperated with the “implied consent” test, an exception by statute (V.C. 23612, which provides for a chemical test if lawfully arrested at the pain of loss of license – a civil sanction. The police secured the “best evidence” of the driver’s level of intoxication. The defendant was in custody at the police station; he/she did not waive Miranda rights. The police officers then gave the defendant an advisement regarding the voluntary due process right to provide an additional sample for analysis of his/her blood alcohol content.

The request for such an additional sample is in effect, an additional request to search the subject for the amount of alcohol in his/her blood. Such a warrantless search requires “consent.” (There is no “implied” consent). The defendant chose not to consent to further searches. The defendant declined any further searches of her body.

The Defendant requests an order instructing the Prosecution and its witnesses to abstain from any reference and/or evidence that relates to the Trombetta advisement and/or that the Defendant exercised his/her rights and declined to consent to any further searches of his/her body for blood alcohol content. The Defendant is under no statutory or other legal duty to take any additional tests. He/she is only required to take a chemical test as required by V. C. §23612(a). This was done.

The officer failed to inform the Defendant that his/her election to not submit to another chemical test would be utilized as evidence against him/her at his/her trial. Thus, to punish this Defendant by that evidence would violate Due Process.

The prosecution’s use of the fact that the Defendant did not submit to an additional chemical test and to use the Defendant’s own words post-arrest as evidence against him is analogous to commenting on the Defendant’s exercising his/her right to remain silent in the face of interrogation, which is prohibited by Miranda, id. at 468.

Any evidence admitting the Trombetta advisement and the answer thereto would substantially prejudice the Defendant, creating a false “consciousness of guilt” argument.

Under Evid.C. § 352, the Trombetta advisement and the Defendant’s election to not submit to a further test would lead to an undue consumption of time, e.g. did the cop tell the Defendant that “breath testing is inaccurate, that blood testing is more accurate, etc.” The Defendant’s failure to submit to a further test has no relevance unless one presupposes the Defendant’s knowledge of the breath result and the potential inaccuracy of the breathalyzer machine and testing procedures.


“It is well settled that the taking of a person’s blood, breath or urine is a search and seizure within the meaning of the Fourth Amendment to the U.S. and California Constitutions. Schmerber v. California (1966) 384 U.S. 757 at 767.” The “implied consent” law of V.C. 23612(a) is an exception to the Fourth Amendment.

The U.S. Supreme Court held that “the administration of the blood test is not free of the constraints of the Fourth Amendment.” Such testing procedure plainly constitutes searches of persons and depends antecedently upon seizures of persons within the meaning of that amendment. Schmerber v. California, id., at 767.


The Fourth Amendment to the United States Constitution states that “The right of the people to be secure in their PERSONS, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This is the cornerstone of any inquiry regarding governmental acquisition of 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).)
  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. “Generally, a search must also be supported by probable cause, and must be backed up by a warrant, or the circumstances must fit an exception to the warrant requirement.” (Nelson v. City of Irvine 143 F.3d 1196, 1200 (9th Cir. 1998) [internal citations omitted].)
  5. “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) reh. den’d [footnote omitted, emphasis added].)


In Ferguson v. Charleston (2001) 121 S.Ct. 1281 the court reviewed whether a state hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes constituted an unreasonable search if the patient did not knowingly and voluntarily consent to the procedure.

Under the facts of Ferguson, patients provided urine tests to a state hospital which used drug screens on the samples under the procedures implemented by the hospital and the police. Arguably, the patient was on notice that the hospital would be using the urine test to determine drug use and would thereafter submit positive results to the police for prosecution. The ultimate goal of the program was laudable: the “immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal.” (Ferguson v. Charleston, id.) The Court held that Fourth Amendment’s general prohibition against non-consentual, warrantless searches” applied (Ferguson, i.d.).

In Ferguson, the prosecution argued the evidence of drug use was admissible because the search was not done by the police. In our case, the search of defendant’s body for evidence of his blood alcohol content by the PAS device was done directly by the police. Therefore, this is a stronger case for application of the Fourth Amendment’s prohibition against warrantless searches.


When citizens undertake to obtain such evidence for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require, c.f. Mirandan v. Arizona, 384 U.S. 436 (1966).” (Emp. added) Ferguson, id. at 2842. All the more does this requirement of a knowing waiver apply when the police obtain the evidence. The prosecution cannot argue in this case that there was a “knowing waiver” or consent to the search.


The United States Supreme Court has held in Bumper v. North Carolina (1968) 391 U.S. 543, 88 SC 1788, 20 LE2, 797 (68), that the government has the burden of proving consent “was, in fact, freely and voluntarily given.” The evidence will be suppressed as the result of an illegal search and seizure.

In People v. Shandloff (1985) 170 Cal.App.3D 372, 215 CR 916, the court held that the people’s burden is to prove that the consent was the product of free will and not a mere submission to an express or implied assertion of authority.


The defendant’s words and mental processes in response to the officer’s questions about an additional chemical test involve Defendant’s Fourth and Fifth Amendment Rights, (e.g. “I do not consent to your proposed search” or “No, I don’t want needles.”). The statements would improperly be used to show that Defendant had something to hide and/or demonstrating his/her consciousness of guilt. Such evidence would punish the defendant for asserting his/her right to not submit to further searches of his/her body and/or right to remain silent. To admit into evidence the fact that the Defendant did not agree to further searches (submit to any additional tests), which was at his/her election, would lead to inescapable prejudice that the jurors might believe that the Defendant was attempting to hide something, or had a consciousness of guilt.

In People v. Keener (1983) 148 Cal.App.3d 73, the officers testified during the prosecution case-in-chief “how they tried to coax Keener out of the apartment” and his response (which was not cooperative) (id. at p. 78). The prosecution theory was that “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.) The Keener Court 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 v. 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. (Griffin at p. 614.) Doyle held that the due process clause of the Fourteenth Amendment forbids prosecutors from using a defendant’s postarrest, 148 C.A.3d 73, 79 post Miranda’ silence for impeachment purposes.

Keener, supra, 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.)”

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 I 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 decision by the Defendant to decline to submit to any further chemical test is not a valid waiver of the right to collect evidence unless it is voluntarily, knowingly, and intelligently made. In the case of an additional chemical test , a “knowingly and intelligently” made decision requires the Defendant to have knowledge of the breath test result and its potential inaccuracies. This information was not given to the Defendant at the time he was advised of his/her Trombetta rights. Absent a showing that Defendant’s decision to decline an additional chemical test was knowing and intelligent, the statements in response to the police request for additional evidence while in custody must be suppressed. See People v. Bradford (1997) 14 Cal.4th 1005, 929 P.2d 544, Cal.Rptr. 2d 225 (where Defendant did not knowingly and intelligently waive her right to counsel, her statements must be suppressed despite the fact that the statements were made voluntarily).

The admission into evidence that the defendant declined to take an additional blood/urine test, by necessity, would call for an explanation by the Defendant, thereby denying the Defendant of his/her 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. “… the privilege [against self incrimination] is fulfilled only when the person is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of her own will.”


The Defendant will not raise any issues concerning the Trombetta advisement as being the subject of any improper police conduct. Trombetta is therefore not an issue and not relevant in the case.

Based upon due process concerns as generated by Hitch, the police give a “Trombetta” advisement which informed the subject that a breath sample is not preserved and if they want a preservable sample, they can provide a blood or urine sample for blood alcohol content. This is a right of the defendant. The testing for blood alcohol content by blood, breath, or urine constitutes a search. When there is probable cause and the defendant is under lawful arrest, the legislature has declared that the person is deemed to have given consent by implication. That “consent” does not apply to the Trombetta request for a search. The fact that a citizen declines further testing (searches), which is her right, cannot be used to punish her.

Any relevance go to the Trombetta advisement and her response while in custody violates Miranda. Could the police ask her, while under arrest and at the police station, and absent Miranda, “Do you think you are under the influence of alcohol?”

The relevance of the Trombetta advisement and response would have to be on a foundation that the defendant knew the inherent problems of breath testing (contamination, mouth alcohol, etc.) and/or that she was contesting the accuracy of the measurements at the time of the breath test. That is not the case.