Refusal of No Refusal?

[bojames]

State: California

I have a couple of questions regarding the law behind chemical testing and procedures in a DUI Case. I was arrested over the summer for a DUI. When I was asked to get out of the car, I performed field sobriety tests, and asked to blow into a PAS breathalyzer machine. I have never been pulled over before, have nothing on my criminal record, and have had no problems with law enforcement of any kind. I attempted to blow into the machine, and as soon as I attempted this, the officer immediately shoved me against the car and began aggressively trying to cuff me. I explained that I had done nothing wrong and was confused about his aggression and told him I would comply 100%, all he needed to do was explain what he wanted me to do.

In the back of the patrol car, I then began to watch as the other officer opened my father's trunk (I was driving his car,) and began to rummage through it with a flashlight. They also opened up my car doors and began searching my vehicle and found nothing. A violation of my rights, but there's nothing I can do about it.

On the police report, the officer does not mention the breathalyzer test. He simply mentions that I refused to select any tests. (This is not true, I opted to take a breathalyzer test - he never mentions this. Simply that I refused to choose one.) He never read the DS 367 I was taken to the hospital to have my blood drawn. So my question is, is it a refusal or not? He claims I refused a test and I was forced to have blood drawn, yet at no time did he comply with VC 23612 where it states that you have a choice to have your blood drawn or breath test, nor did he comply by explaining the consequences of not taking a test. He never read to me the back of the DS 367, and the checkbox for "Refused (complete DS 367") is NOT checked.

So my question is, is this officer confused about whether or not this is a refusal? Is it one or not? I don't understand this discrepancy. To say I refused, then to not mark it as a refusal? How could I be forced to take a blood test if I never objected to a breathalyzer, and if the officer does not even mention giving me one? Lastly, how can he not comply with reading and completing the DS 367 before forcing a blood draw? Thank you so much for your help. - Bo

 

[xylene]

You have been arrested for a serious charge, with complex circumstances.

You need a lawyer, and you need to be prepared for this to take several months or even a year to be resolved, excluding any punishment.

 

[bojames]

I have one. Kind of.

I hired an attorney imediately after this happened. I paid him his retainer in full.

Since that time, I began to get curious as to when I could sit down with him and go over my case with him... explain how things happened, and ask questions. I e-mailed them about this. They informed me that the attorney likes to "have all documents" and everything together before he sets up an appointment to talk about my case with me.

HE HAS NOT SPOKEN WITH ME ABOUT MY CASE ONE TIME SINCE MY HIRING APPOINTMENT. My final court date is less than a week away, and he finally calls me in and says "here's what your options are." But I have questions! I have a story! Why hasn't he been in contact with me? All I ever got were emails saying he went to court for me and theres another court date. But I'm a human being, I have questions and he hasn't even spoken to me about my case, I feel horrible about this...

 

[antrc170]

State: California

In the back of the patrol car, I then began to watch as the other officer opened my father's trunk (I was driving his car,) and began to rummage through it with a flashlight. They also opened up my car doors and began searching my vehicle and found nothing. A violation of my rights, but there's nothing I can do about it.

I'll let your attorney handle the specific questions concerning the validity of any test as I'm sure he is more familiar with CA law than I. However, I will piont out that after you are arrested the officers have the right, (and responsability in many jurisdictions), to search the vehicle to ensure a property inventory of the vehicle is complete. In addition, they can also search the vehicle for evidence of the crime committed. In your case a search of the vehicle may reveal an opened container, etc.

 

[dmcc10880]

Were you arrested for DUI of alcohol or drugs. If the latter, there's no need for the breath test.

CA's implied consent law which you agreed to when you got your drivers license mandates that you submit to either a breath or blood test. The blood test is generally more accurate and results in more convictions. There's nothing that states you must take the breath test first, then the blood test.

The vehicle search was completely valid.

There's no requirement for the officer to read the DS367 to you.

There are a lot of intricacies involved in a DUI. You need a good DUI lawyer. Sounds like you need to go shopping for a new one in a hurry if you feel your current attorney isn't working for you.

BTW, what were the blood test results?

 

[bojames]

Were you arrested for DUI of alcohol or drugs. If the latter, there's no need for the breath test.

CA's implied consent law which you agreed to when you got your drivers license mandates that you submit to either a breath or blood test. The blood test is generally more accurate and results in more convictions. There's nothing that states you must take the breath test first, then the blood test.

The vehicle search was completely valid.

There's no requirement for the officer to read the DS367 to you.

There are a lot of intricacies involved in a DUI. You need a good DUI lawyer. Sounds like you need to go shopping for a new one in a hurry if you feel your current attorney isn't working for you.

BTW, what were the blood test results?

Hmm, perhaps you live in another state? In California, opening someone's trunk, or opening compartments etc, must be done with either a warrant or consent. Digging through things that can't be seen on a seat, under a seat with a flashlight et cetera is unconstitutional. My lawyer agreed and stated there's nothing that can be done however, except a civil suit, which he said would be expensive and pointless.

I mentioned the DS form because it IS required *IF* he marks it as a refusal. If you refuse a test, he is required to read the statement to you. This is stated in the California Vehicle Code. I can quote it, I have it sitting right in front of me. That's why I was confused, because he stated I refused, but then didn't complete this step. As for the attorney, yes I don't think what is happening here is fair. No contact? No examining my witnesses (I had a friend in the passenger seat, he never even got a call to record a statement. Hell, he didn't even get one from ME.) Odd. Anyway, my bac was .12, and I informed my attorney that I had corroborating witnesses that half of the drinks I had that night (approx. .06 worth) happened 20-30 minutes before I got pulled over, before I left the place, so my BAC was still rising (takes up to an hour to level, then begin to fall.) He didn't talk to them either.

 

[dmcc10880]

Hmm, perhaps you live in another state? In California, opening someone's trunk, or opening compartments etc, must be done with either a warrant or consent. Digging through things that can't be seen on a seat, under a seat with a flashlight et cetera is unconstitutional. My lawyer agreed and stated there's nothing that can be done however, except a civil suit, which he said would be expensive and pointless.

I mentioned the DS form because it IS required *IF* he marks it as a refusal. If you refuse a test, he is required to read the statement to you. This is stated in the California Vehicle Code. I can quote it, I have it sitting right in front of me. That's why I was confused, because he stated I refused, but then didn't complete this step. As for the attorney, yes I don't think what is happening here is fair. No contact? No examining my witnesses (I had a friend in the passenger seat, he never even got a call to record a statement. Hell, he didn't even get one from ME.) Odd. Anyway, my bac was .12, and I informed my attorney that I had corroborating witnesses that half of the drinks I had that night (approx. .06 worth) happened 20-30 minutes before I got pulled over, before I left the place, so my BAC was still rising (takes up to an hour to level, then begin to fall.) He didn't talk to them either.

Sorry to be the bearer of bad news, but when it comes to the search of a vehicle when you're arrested, the federal case precedent supercedes California.

When you were arrested, the search was allowed even if the arrest is for an unrelated violation. The federal decisions also allow a search based on the officer's fear of weapons, even if the you were already arrested, handcuffed and in the rear of a police unit as you were.

The officer as you said, DID NOT check the box on refusal.

As for handling the case again, you'd better go shopping for a new lawyer. This is a serious and costly charge. You need someone who can aggressively fight for you and most importantly blow holes if possible in the blood test.

 

[CdwJava]

In the back of the patrol car, I then began to watch as the other officer opened my father's trunk (I was driving his car,) and began to rummage through it with a flashlight. They also opened up my car doors and began searching my vehicle and found nothing. A violation of my rights, but there's nothing I can do about it.

If they are intending to impound the vehicle after an arrest, they are permitted to conduct an inventory (search) of the vehicle subsequent to the arrest.

On the police report, the officer does not mention the breathalyzer test. He simply mentions that I refused to select any tests. (This is not true, I opted to take a breathalyzer test - he never mentions this. Simply that I refused to choose one.)

The breath test in the field is not the required test, it is one of the FSTs.

For whatever reason, they apparently believe you reused to take a breath test or blood test after you were arrested. This refusal is an issue for the DMV. You or your attorney can contest this with the DMV at the DMV hearing that I am sure you scheduled within 10 days of the arrest, correct?

So my question is, is this officer confused about whether or not this is a refusal? Is it one or not? I don't understand this discrepancy.

That's an issue for the attorneys. Either the officer made a mistake or your recollection of events is a wee bit cloudy.

Did the blood test come back with a BAC? Did it come back positive for any drugs or controlled substances?

The issue of the refusal is a matter for the DMV, it does not result in a criminal charge. You have a potentially more serious offense with the criminal charge than you do with the DMV matter of the refusal.

 

[Zigner]

Hmm, perhaps you live in another state? In California, opening someone's trunk, or opening compartments etc, must be done with either a warrant or consent. Digging through things that can't be seen on a seat, under a seat with a flashlight et cetera is unconstitutional. My lawyer agreed and stated there's nothing that can be done however, except a civil suit, which he said would be expensive and pointless.

I mentioned the DS form because it IS required *IF* he marks it as a refusal. If you refuse a test, he is required to read the statement to you. This is stated in the California Vehicle Code. I can quote it, I have it sitting right in front of me. That's why I was confused, because he stated I refused, but then didn't complete this step. As for the attorney, yes I don't think what is happening here is fair. No contact? No examining my witnesses (I had a friend in the passenger seat, he never even got a call to record a statement. Hell, he didn't even get one from ME.) Odd. Anyway, my bac was .12, and I informed my attorney that I had corroborating witnesses that half of the drinks I had that night (approx. .06 worth) happened 20-30 minutes before I got pulled over, before I left the place, so my BAC was still rising (takes up to an hour to level, then begin to fall.) He didn't talk to them either.

Search incident to arrest.

 

[CdwJava]

Hmm, perhaps you live in another state? In California, opening someone's trunk, or opening compartments etc, must be done with either a warrant or consent.

Or if an exigency exists. Pursuant to state and federal case, a pre-storage inventory (a search) is permitted when the officers intend to tow the car of a person who has been arrested.

A search incident to an arrest could not be so involved as to include the trunk, and would have to be limited to those items that might be reasonably articulated as related to the offense and near enough to where you were arrested. So, looking for a bottle of booze might be reasonable under the right circumstances, but searching for it in the trunk would not be.

But, if the vehicle was towed, this is all a moot point.

Digging through things that can't be seen on a seat, under a seat with a flashlight et cetera is unconstitutional. My lawyer agreed and stated there's nothing that can be done however, except a civil suit, which he said would be expensive and pointless.

Your lawyer is not all that up to speed if he is not familiar with impound inventories.

However, if your car was NOT towed, then you have an argument for an unlawful search ... unless the officers had some other probable cause, and it's not clear what that might be that would justify opening the trunk.

 

[I_Got_Banned]

In California, opening someone's trunk, or opening compartments etc, must be done with either a warrant or consent. Digging through things that can't be seen on a seat, under a seat with a flashlight et cetera is unconstitutional.

You were arrested, were you not? Was your vehicle impounded?

No examining my witnesses (I had a friend in the passenger seat, he never even got a call to record a statement. Hell, he didn't even get one from ME.)

What possible benefit could your "witness" statement afford you when the officer has evidence that you blew a .12?

Anyway, my bac was .12, and I informed my attorney that I had corroborating witnesses that half of the drinks I had that night (approx. .06 worth) happened 20-30 minutes before I got pulled over, before I left the place, so my BAC was still rising (takes up to an hour to level, then begin to fall.) He didn't talk to them either.

So you blew and .12 at a time when your BAC was RISING... How could ANY testimony form those "corroborating" witnesses help your case in any way?

 

[I_Got_Banned]

However, if your car was NOT towed, then you have an argument for an unlawful search ... unless the officers had some other probable cause, and it's not clear what that might be that would justify opening the trunk.

And of course, even if it was an illegal search, it would have no impact whatsoever on the outcome of the DUI case.

 

[bojames]

Thank you for your help and some very good points. Yes, admittedly, the searching is a moot point, and it was indeed taken away to a tow yard. I didn't know this.

As it concerns the BAC, my issue is with the blood draw. How can you be forced to have blood drawn? My issue with the rising blood alcohol is that an hour and a half passed between my last drink and my blood draw. Had I had a chance to have a breathalyzer performed, I would have undoubtedly gotten a lower reading. An hour and a half is a long time, and enough for the BAC to hit whatever it's gonna hit. I wish I was allowed to have a breathalyzer test is all.

P.S. - I know it's got nothing to do with the DUI, but just for reference - As it concerns search incident to arrest - "This search is limited to only the person arrested and the area immediately surrounding the person in which the person may gain possession of a weapon, in some way effect an escape, or destroy or hide evidence." That wouldn't include your trunk when you're in handcuffs in the back of a patrol car. Again, just a reference.

 

[CdwJava]

How can you be forced to have blood drawn?

Because it is evidence and it is changing each minute, and the CA and US Supreme Courts have said that an exigency exists to support the seizure of this evidence in a medically approved manner even if it is against the consent of the suspect.

My issue with the rising blood alcohol is that an hour and a half passed between my last drink and my blood draw. Had I had a chance to have a breathalyzer performed, I would have undoubtedly gotten a lower reading.

The reading will still be valid for purposes of the court. Your attorney can try to argue a rising BAC, and the DA may argue a diminishing BAC. In the end, if this is a first offense, a plea deal to a wet reckless is likely in your future, anyway.

P.S. - I know it's got nothing to do with the DUI, but just for reference - As it concerns search incident to arrest - "This search is limited to only the person arrested and the area immediately surrounding the person in which the person may gain possession of a weapon, in some way effect an escape, or destroy or hide evidence." That wouldn't include your trunk when you're in handcuffs in the back of a patrol car. Again, just a reference.

I think that is effectively what I said.

 

[Zigner]

As it concerns search incident to arrest

As CdwJava pointed out, this was an inventory incident to impound, not a search incident to arrest. I stand corrected.