Imagine this DUI arrest: A vehicle stop is made. The driver fails to pass the FSTs (field sobriety tests) and perhaps a PAS test as well. The driver is placed under arrest for DUI. Then the driver is told that the law requires he or she must undergo a chemical test, either blood or breath. The driver has no option other than to choose one and selects blood. On to the police station, they go where the blood is drawn. The BA is over .08. Criminal charges for DUI are filed.
If a lawyer were to challenge the blood testing and was to bring a motion to suppress the blood alcohol test results, often courts will cite the “implied consent law”, to deny relief to the person accused of a DUI.
Part of the reasoning for this is under the authority and legal reasoning of People v. Mason (2016) 8 Cal.App.5th Supp. 11. Because the blood draws under these routine facts are premised on “implied consent,” Mason shows that not only is “implied consent” a fiction and not really consent at all but that California’s statutes violate the Fourth Amendment in requiring warrantless blood tests in situations where an emergency circumstance does not exist.
As DUI case law in California, the Mason case is an Appellate Division case from Santa Clara. It is not binding on any court. However, it is persuasive authority and convincingly distinguishes an earlier and contrary ruling in the same county appellate division. (People v. Agnew (2015) 242 Cal.App.4th Supp. 1.) Mason follows the reasoning of People v. Harris (2015) 234 Cal.App.4th 671, discussed below. To summarize Mason’s excellent and comprehensive analysis:
“To recap, we have concluded that advance “deemed” consent under the implied consent law cannot be considered actual Fourth Amendment consent. We have also concluded that the scope of advance express consent under the implied consent law may not necessarily extend to Fourth Amendment considerations in a criminal prosecution, and that, in any event, no such advance express consent was shown here. Finally, we have concluded that, depending on the totality of the circumstances, a representation by an officer that submission to a chemical test is “required” under the implied consent law without reference to any of the consequences of refusal such that the substance of what is conveyed is that there is no actual choice to refuse may amount to a claim of lawful authority vitiating consent for Fourth Amendment purposes.” — (People v. Mason, supra at 31.)
It is always the burden of proof in a DUI for a prosecutor to establish that a defendant freely and voluntarily consented to the warrantless blood draw. Most times, there is no express consent given to a blood draw. Usually, the driver just submits to the order that he/she must take a blood or breath test. So, at the suppression hearing, the prosecution seeks refuge under the California implied consent law and argues that the advanced implied consent was provided through the licensing process, or failing proof of that, arguing that the statutes say if you drive, you consent.
In Mason, the prosecution never proved Mason was a California licensed driver which undercuts the argument that the licensing process told her she was providing consent to a blood or breath test. That teed up the Fourth Amendment issue versus the argument that if you drive in California you have consented to warrantless blood tests.
Consent and the Required Admonitions by the Arresting Officer
Many officers fail to comply with the directive of Vehicle Code § 23612, subdivision (a)(1)(D), which provides that the arrested driver “shall be told that his or her failure to submit to, or the failure to complete, the required chemical testing will result in a fine, mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153.” Additionally, the driver is to be told that there is a sanction of suspension of the driving privilege for one year for failure to submit to testing. Of course, if this required directive is given, it totally undermines the notion of free and voluntary consent to the chemical test, implied or otherwise. Consent is not free if produced by threats of criminal sanctions.
Where “the prosecution relies on consent to justify a warrantless search or seizure, it bears the ‘burden of proving that the defendant’s manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority. [Citation.]’” (People v. Zamudio (2008) 43 Cal.4th 327, 341.) When a driver submits to a claim of lawful authority (and the threat of imprisonment), this does not show free and voluntary consent. The circumstances are inherently coercive, thus vitiating consent. (E.g., Bumper v. North Carolina (1968) 391 U.S. 543, 548–549 [police told the homeowner they were conducting a search under a warrant—one that the prosecution declined to rely on; the assertion of authority vitiated the homeowner’s consent to search].)
Vehicle Code § 23612, subdivision (a)(4), provides that the officer “shall also advise the person that he or she does not have the right to have an attorney present before stating whether he or she will submit to a test or tests, before deciding which test or tests to take, or during the administration of the test or tests were chosen, and that, in the event of [a] refusal to submit to a test or tests, the refusal may be used against him or her in a court of law.” (Emphasis added.) This admonition at least hints that there is some choice in deciding whether to take or not take a test. In fact, in People v. Harris (2015) 234 Cal.App.4th 671, among other factors, this admonition helped convince the court that Harris actually consented to the chemical test.
While the failure of the officer to give the driver these mandatory admonishments will not amount to a constitutional violation, they are relevant in determining the issue of consent under the totality of the circumstances. (People v. Harris, supra at 689 [failure to disclose accurate information about potential legal consequences is a logical basis for an assertion of coercion].)
C. Without Consent, There is No Justification for a Warrantless Blood Draw Absent Exigent Circumstances. Unlike breath tests:
“[b]lood tests are a different matter. They “require piercing the skin” and extract a part of the subject’s body. [Citation] see also_ McNeely, 569 U. S., at ___, 133 S.Ct. 1552, 185 L. Ed.2d 696, 706 (opinion of the Court) (blood draws are “a compelled physical intrusion beneath [the defendant’s] skin and into his veins”); id., at ___, 133 S.Ct. 1552, 185 L. Ed. 2d 696, 706 (opinion of Roberts, C. J.) (blood draws are “significant bodily intrusions”).
(Birchfield v. North Dakota (2016) 136 S.Ct. 2160, 2178.)
Fourth Amendment protections against illegal search and seizure are obviously implicated in a non-consensual blood draw. Taking blood from a person’s body for purposes of chemical testing is a search and seizure. (Missouri v. McNeely (2013) 569 U.S. ___; 133 S.Ct. 1552, 1558.) Searches and seizures performed ‘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.’” (Arizona v. Gant (2009) 556 U.S. 332, 338.) Exigent circumstance is an exception, but the dissipation of blood alcohol alone does not generally excuse the failure to obtain a warrant for a blood seizure. (Missouri v. McNeely, supra, 133 S.Ct. 1565.)
Typically, without a warrant or exigent circumstances, the prosecution falls back on implied consent to justify the blood draw. But there are now constitutional limits to what the Vehicle Code can authorize. In Birchfield v. North Dakota (2016) 136 S.Ct. 2160, 2185, the U.S. Supreme Court stated it “must address respondents’ alternative argument that such [blood] tests are justified based on the driver’s legally implied consent to submit to them.” The Court rejected that argument. While noting that civil penalties and evidentiary consequences are one thing (i.e., probably permitted), “[t]here must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.” Civil sanctions for blood test refusals may be legal, but the State cannot mandate unconsented blood extractions for criminal purposes: “[W]e conclude that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” (Birchfield, supra at 2185‑2186.) Thus, Birchfield disapproved of laws imposing criminal penalties for refusing to take a blood test. (Ibid.)
California law says if you drive in California you are deemed to consent to chemical testing. Vehicle Code § 23612 (a)(1)(A) states: “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood….” But People v. Mason (2016) 8 Cal.App.5th Supp. 11, answered the argument that this statute permitted warrantless blood draws in criminal contexts: “whatever effect advance ‘deemed’ consent may have under the implied consent law in the administrative context, that law does not make the results of a chemical test admissible in a criminal prosecution, without a warrant or proof of circumstances establishing an exception to the warrant requirement. Nor does it even purport to.” (Id. at 29.) And Birchfield notes that there are limits on what the State can require of a citizen for the privilege of driving. Giving blood is one of them.
In the wake of McNeely and Birchfield, California’s implied consent law must be interpreted to comply with federal constitutional principles. The implied consent statute, Vehicle Code § 23612(a), if interpreted to permit warrantless blood draws, conflicts with McNeely and Birchfield, and the Fourth Amendment. To avoid that conflict, the statute must be interpreted to require one of three conditions before blood may be drawn from an arrestee, i.e., either case‑specific exigent circumstances (McNeely), a valid consent (not the legal fiction of implied consent), or a valid search warrant. Absent one of those exceptions, the arrestee is not legally required to submit to a blood draw. Any blood draw compelled outside these exceptions without a warrant is violative of the Fourth Amendment and should be ordered suppressed.
Why Proof of the Driver’s License May is Important to the Consent Issue.
Calif. Vehicle Code § 13384 requires renewals for licenses to consent in writing to give chemical tests when requested by an officer: “(a) The department shall not issue or renew a driver’s license to any person unless the person consents in writing to submit to a chemical test or tests of that person’s blood, breath, or urine pursuant to Section 23612, or a preliminary alcohol screening test pursuant to Section 23136, when requested to do so by a peace officer.
All application forms for driver’s licenses or driver’s license renewal notices shall include a requirement that the applicant sign the following declaration as a condition of licensure: ‘I agree to submit to a chemical test of my blood, breath, or urine for the purpose of determining the alcohol or drug content of my blood when testing is requested by a peace officer acting in accordance with Section 13388 or 23612 of the Vehicle Code.’”
Whether this forced consent will survive the crucible of litigation in a criminal case (is this voluntary consent?), remains to be seen. (See People v. Mason, supra at 26-27, doubting the sweep of the statute to overcome constitutional protections [“the scope of [section 13384 ] which we would still doubt as automatically encompassing Fourth Amendment rights and concerns that lie beyond the over‑the‑per‑se‑limit administrative and evidentiary consequences provided in the implied consent law itself”].)
It will be an easier defense argument where the prosecution fails to introduce evidence of the license, or a renewal, as happened in Mason. But even if introduced by proof of the signed consent on a license renewal (and make sure they produce evidence of both), there are good arguments that a section 13384 “consent” was coerced by the threat of depriving a citizen of his/her fundamental right to travel. (See case citations on this point in Mason, supra at pp. 24-25.)
“In short, it is not real or actual consent in fact for purposes of the Fourth Amendment, though it may be perfectly fine for purposes of administrative proceedings involving forfeiture of driving privileges under the implied consent law upon a refusal to submit to a duly requested chemical test.” (Id. at 27-28.)
This area is obviously ripe for litigation within suppression challenges and may ultimately have to be resolved by the U.S. Supreme Court.