Battery shouldn't be a big problem depending on the terms or your probation as DUI is not related to physical contact offense.
Depends on the reported facts. There was this San Diego case called Eberle v. DMV (below). Consider this.
A California DUI arrestee may not refuse to submit to a blood or breath test at station (or jail) under the Implied Consent Laws. But a refusal may be cured.
Just before being arrested for drunk driving, usually the last thing a San Diego DUI suspect is (supposed to be) told by the police is that he or she has a right to refuse the (hand-held breath)
Preliminary Alcohol Screening (PAS) test. [It's an optional field sobriety test.]
Upon being handcuffed in the street, the San Diego DUI arrestee is often told he or she has the right to remain silent and to an attorney ("Miranda rights").
Then the San Diego DUI arrestee is "admonished" that he or she must do a breath or blood test.
If the San Diego DUI arrestee initially indicates “no” – perhaps confused or thinking he or she still has the right NOT to have to blow in the street - what happens when the DUI officer interprets this as a "Refusal" and makes up his mind to transport the person to the San Diego county Police Station or jail for a forced blood test?
A "Refusal" is unfair or abusive if the DMV agrees with the officer as the person will have his or her license suspended or revoked for a year.
Even if the person did not want to provide a blood sample does NOT mean he or she would NOT have done a DUI breath test, if offered, at a San Diego county station.
What if the San Diego DUI arrestee is never offered a "choice" of tests at the station?
There’s a difference between reading the Admonition in the field (immediately AFTER
arrest and immediately AFTER informing a San Diego DUI arrestee of the right to refuse the
(first PAS breath) test vs. reading the Admonition at the location of the tests (at the station).
What happens after the officer reads the Admonition only in the street, the Officer follows it up with the “choice” question: “Will you take a breath test? (Or a) blood test?”
A fundamental problem is that the Implied Consent statute (Vehicle Code Section 23612) does NOT require the San Diego DUI arrestee to (A) state a Choice of Tests, or even (B) answer any questions.
So when San Diego DUI arrestee does not respond to the "choose" request, is there a violation of the Implied Consent law?
In real life, people often hesitate. Humans frequently change their minds. In Re Smith, 115 Idaho 808, 770 P. 2d 817 (Ct. App 1989) allowed a driver to change his mind and recant the refusal. Courts understand this.
One may reasonably determine that a San Diego DUI arrestee's submission to the blood draw at the station cures any prior indecision and initial Refusal (“No test”
in the street. One may also reasonably conclude under the “ok to refuse (PAS) test” immediately preceding the street Admonition & subsequent submission to blood test.
Does a San Diego DUI arrestee thwart the purpose of the Implied Consent statute
when submitting to a blood test upon arrival at the actual location of the Chemical Test?
All 50 states have adopted an Implied Consent Law. The purpose behind the adoption of that law is to encourage those who are suspected of DUI to submit to a chemical test in order to determine their blood alcohol level. “The State has a strong interest in obtaining evidence from a chemical test because ‘the inference of intoxication arising from a positive blood-alcohol test is far stronger that that arising from a refusal to take the test’” State v. Suazao, 877 P.2d 1088 (N.M. 1993), citing South Dakota v. Neville, 459 U.S. 553, 564, 103 S.Ct. 916, 922, 74 L.Ed.2d 748 (1983).
In situations such as the one presented, courts have adopted differing views as to whether or not a driver should be allowed to cure his prior refusal and under what circumstances can a driver cure or rescind a prior refusal. San Diego DUI attorneys must urge the Department to adopt the more flexible standard which has been adopted by several other states including Idaho, New Mexico, and Kansas. In Standish v. Dept. of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984) the Supreme Court of Kansas adopted a five part test to determine whether a driver could legally effect a cure or rescission.
We believe that the administration of the test should be encouraged and the person arrested should be given every reasonable opportunity to submit to it. For this reason, we hold that an initial refusal may be changed or rescinded, and if rescinded in accordance with the following rules, cures the prior refusal.
To be effective, the subsequent consent must be made:
(1) within a reasonable time after the prior first refusal;
(2) when a test administered upon the subsequent consent would still be accurate;
(3) when testing equipment is still readily available;
(4) when honoring the request will result in no substantial inconvenience or expense to the police; and
(5) when the individual requesting the test has been in the custody or the arresting officer and under observation for the whole time since arrest.
Standish v. Dept. of Revenue, 683 P.2d 1276, 1280 (1984)
Under the five part test set forth in Standish, a San Diego DUI arrestee effectively cures and rescinded a prior Refusal, when:
(1) A San Diego DUI arrestee agrees to take the test within a very short and reasonable time after the alleged refusal. Immediately after an arrest, the Officer notes a refusal, reads the Admonition in the street and transports “for a forced blood test.” Then at the station, blood is drawn.
(2) The blood test upon the subsequent consent is still accurate.
(3) Equipment is still readily available.
(4) No inconvenience to the police or expense results.
(5) The San Diego DUI arrestee was in custody and observation.
One California court considered such principles, when there is not even a blood
or breath test available at the time of the initial refusal on the street.
“There was no available test pending at the time of the initial refusal, and thus even the admitted delay in consenting to the test did not make any difference under all the circumstances, with respect to the main purposes of the statute (obtaining an effective test and keeping impaired drivers off the road). Since the purposes of the statute are not mainly punitive in nature, the Department's interpretation of these facts is unduly strict.” [Eberle v DMV (DCA4 - 2/23/07) 2007 Cal. App.Unpub. LEXIS 1487, citing Ellis v. Pierce, (1991) 230 Cal.App.3d 1557, 1561]
Eberle v DMV (DCA4 - 2/23/07) 2007 Cal. App. Unpub. LEXIS 1487 was a San Diego DUI refusal case handled by prominent criminal defense lawyer James Bishop. The Court of Appeals held: When a person arrested refuses chemical test to Cop No. 1, but delay occurs and person is handed over to Cop No. 2 who is clueless about any chemical test refusal. Cop No. 2 says, “Will you submit to blood or breath?” Person then says, “Blood.” And blood is duly drawn.
At the DMV hearing, DMV abused its discretion by concluding Respondent refused. On writ, trial court says: “Not really a refusal.”
DMV appealed but the Court of Appeals said the trial court used independent judgment and had substantial evidence to overrule DMV Hearing Officer. The court noted: “He admitted that in his own testimony. But the problem I have with it is this was no test being administered or likely to be administered then. Perhaps if the officer had pulled out the . . . device and he said no I'm not going to blow into that, it might be a little stronger case for a refusal. But this was no ability, this was no intent at that time to give a test. And that's why I'm concerned, is the time of this and the location. Saying out on the street corner, no, I don't want to take any of your tests versus being in a lab room saying you have to choose between that breath machine or a blood draw and saying no way, I'm not going to give you anything. To me those are two different situations. The timing and location [are] significantly different."
Typically, the San Diego Sheriff’s Crime Laboratory maintains the Intoximeter EC/IR breath test used throughout the county at police stations and jails. Only the trunk carrying CMI Intoxilyzer 8000 is used on the street, and only by some San Diego PD.
No blood technician or phlebotomist is available on the street. Blood draws are done at the station or jail, not in the street.
In the street, there is no ability to give a San Diego DUI arrestee an Implied Consent (Title 17) breath or blood test. Because there is no intent at the time of an Admonition on the street to give either test, there should be no “Refusal” as long as the San Diego DUI arrestee cures any initial Refusal.
