Monder Law Group - News
Are You Allowed to Refuse An Alcohol Prescreening Test In a DUI Case?
Yes. The law that allows this is Vehicle Code 23612(i) and the Constitution. The Fourth Amendment states” “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.” And courts have affirmed in earlier cases 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.
In fact, the Constitution and courts thereafter have maintained that a search of the bidy is more intrusive than a search of one’s home or other property. This means that it is even more protected by the Fourth Amendment. There are many cases on the subject of exigent circumstances permitting the withdrawal of a blood sample in a drunk driving case. The exigent circumstance is that the body quickly metabolizes alcohol, and if time must be taken to obtain a warrant, the evidence will be lost. A search warrant is not required if the defendant is under arrest and withdrawal of the blood is done in a medically approved manner. But if the driver/defendant is NOT under arrest at the time of the proposed PAS test/search, then there is no emergency because the police can secure evidence of BAC as a result of the licensed and regulated test after arrest and with implied consent.
But Doesn’t Refusing the Test Imply Guilt?
An individual’s refusal to consent to a warrantless entry of his residence may be open to various interpretations and is not encouraged, however the assertion of the right itself cannot be a crime nor can it be evidence of a crime. This is in direct violation of the innocent unitl proven guilty standard.
A passive refusal to consent to a proposed warrantless search cannot be punished the Constitution. The defendant also has the right to decline the proposed test pursuant to statute.
If you have any questions feel free to contact San Diego DUI Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Attorney