Monder Law Group - News
Blood Test or Breath Test: Do I Have A Choice In A DUI Arrest?
Yes. You have a choice, per Vehicle Code §23612: a person has the choice of whether the test shall be of his blood or breath and the officer shall advise the person that he or she has that choice. And if not provided that choice than the defendant can argue the compelled blood test was obtained without a warrant and was obtained without consent, it was unreasonable, and violated the Fourth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 13 of the California Constitution.
The Typical Scenario:
The defendant, after being pulled over for a minor vehicle code violation, is taken to the police station. He or she is then NOT offered a choice of blood or breath test. The police officer told him or her “We’re going to take a blood test from you and we are getting a lady here to do it,” or words to that effect. The defendant cooperated fully. However, he or she was never given a choice of tests, nor did he or she ever consent to the withdrawal of the blood from his or her body.
How Do I Argue this Violation of My Rights?
Well, you shouldn’t, your lawyer should. And the first thing your lawyer will (most likely) do is file a 1538.5 motion to raise the issue of the unconstitutionality of a search and simply assert the absence of a warrant and make a prima facie case to support that assertion. Consequently, the burden of proof to justify the warrantless search is on the prosecution. And California courts have ruled that even though the moving party has the initial responsibility of raising the suppression issue, “when [he so raises], he makes ‘a prima facie case’ when he establishes that the arrest or search was made without a warrant and… “the burden then rests upon the prosecution to show proper justification. At this point, you just have to poke holes in the prosecution’s arguments, and make sure they never meet their burden of proof. And the defense has this very strong argument in their favor: If an alternative test is readily available and a suspect requests it, police officers may not arbitrarily refuse to administer it simply because the suspect did not have the presence of mind to make a decision more promptly or because he changed his mind. The standard, as always, under the Fourth Amendment, is reasonableness. Defendants (the police) have offered no explanation for the officer’s refusal to comply with (the arrestee)’s request.
If you have any questions feel free to contact San Diego DUI Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense Lawyer