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Can I Reject a BAC Test?

Pursuant to implied consent to search per V.C. §23612, the police have the right to search a person’s body for evidence of blood alcohol content after a lawful arrest for DUI and could even lawfully forcibly extract a blood test from an arrestee without consent (assuming probable cause and done in a reasonable manner) because there is an exigent circumstance (dissipation of blood alcohol) which dispenses with the warrant requirement. A person who passively insists upon a warrant and does not consent to the police request to search the person cannot be subjected to criminal penalties. Also, a citizen has a privilege to be free from comment upon the assertion of a constitutional right. 

The Constitution, by way of the Fourth Amendment, firther supports this notion; it is the cornerstone of any inquiry regarding governmental conduct involving securing evidence from the accused. And while there is no explicit constitutional right to refuse to take a chemical test, it does not follow that a defendant may be criminally “penalized” when he insists upon the unnecessary warrant and/or by not agreeing to the requested chemical test of his blood.

Can the refusal to consent to a warrantless yet otherwise legally justified search and seizure ever be a crime? 

No, mere refusal to consent to a warrantless search cannot be a crime. The fact that the search and seizure is justified by some exigent circumstance does not permit criminal punishment for not consenting to the search. The Fourth Amendment protects a person’s ultimate authority to passively withhold consent to a government intrusion.

  While it is permissible to suspend a driver’s license (a civil sanction) when an implied agreement to consent to a test has not been fulfilled, the right to passively refuse to consent to a warrantless search and seizure cannot be made criminal.

Constitutional Implications: 

The admission into evidence of the offering of a chemical test for BAC and the Defendant’s response thereto, by necessity, would call for an explanation by the Defendant, thereby denying the Defendant his right not to be compelled in a criminal case to be a witness against himself as guaranteed by the Fifth Amendment of the United States Constitution. This is where Miranda rights stem from.

Therefore, although a warrantless search and seizure of blood or breath for BAC may be legal, it does not follow that a passive refusal to consent to such a warrantless search may be punished as a crime under the Constitution. This is not a wilful refusal, and it cannot be used against you in trial proceedings.

If you have any questions feel free to contact San Diego DUI Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Lawyer