Monder Law Group - News
Choice of Test to Administer in a San Diego DUI Case
V.C. Section 23612 (a)(d) People v. Alvarado 181 Cal. App. 3d Supp.3
The defendant has the right to choose whether the chemical test shall be of his blood or breath. The officer must advise the person that he/she has that choice. If the defendant requests such test, the officer must perform it.
If the requirements of the Vehicle Code are violated by the officer, that violation may be considered as a factor bearing on the credibility of the officer and the accuracy of the breath test administered by the officer.
In People v. Alvarado, Alvarado (Defendant) was charged for driving under the influence and the arresting officer did not give defendant his choice of test. Violation of Cal. Vehicle § 23157.5 allowed the trial court to grant defendant’s motion to suppress the results of a breath test. Cal. Vehicle § 23157.5 states that a person who chooses to submit to a breath test, he/she must be advised that a breath sample cannot be saved and the person must take a urine or blood test. The court reversed the trial court’s decision to grant defendant’s motion to suppression because it was not intended to raise additional boundaries to the admissibility of intoxilyzer testing. If defendant would have presented evidence that the arresting officer violated the law, defendant would have been entitled to a jury instruction. Being entitled to a jury instruction would have allowed the jury to consider the officer’s failure to inform defendant of his rights.