Is California's Implied Consent Law Unconstitutional?

In California, anyone stopped for a DUI is told that they are obligated to give a blood or breath sample because they consented when they were issued a license.  This is the backdrop for a new attack on the coerced taking of blood and breath by the police says one well known DUI attorney.

Indeed,  in Missouri v. McNeely  133 S.Ct. 1552 (U.S. 2013) the Supreme Court of the United States held that nonconsensual, warrantless blood alcohol testing was presumptively unconstitutional.  California has enacted a set of statutes that compels a driver to waive his right to demand the production of a warrant issued by an independent judicial officer, by mandating that the driver consent to a search under the threat of incarceration. The California statute misinforms the driver of his constitutional rights by telling him that he “shall consent” to a search, when presumably, according to the Constitution,  the driver has the right to refuse.

It is well settled that statutes that threaten jail unless someone consents to a warrantless search of their house are unconstitutional on their face. Even more indisputable is the fact that a person’s body is entitled to equal or greater protections than would a person’s house under the Fourth Amendment.  As stated in Katz v. United States, 389 U.S. 347, 351 (1967), “the Fourth Amendment protects people, not places.” There, the Supreme Court found a violation of the Fourth Amendment simply by the attachment of an eavesdropping device to a public telephone booth. Later cases applied the analysis of Justice Harlan's concurrence in that case, which said that a violation occurs when government officers violate a person's “reasonable expectation of privacy,”.   These precepts have been recognized in many published cases.

In summary, an implied consent statute or legislative scheme that criminalizes a citizen’s refusal and thereby coerces consent is not a suitable replacement for the Constitutional dictates of a search warrant application and review by a detached and neutral magistrate.  Reeder v. State, (2014) 428 S.W.3rd 924.  Indeed, many DUI attorneys are now challenging blood tests on these grounds and some Courts have been receptive to the challenges.

Are You On The DUI "Hot List" In California?

Unbeknownst to many, there is a list floating around out there that many people do not know about.   The California DMV has partnered with 35 law enforcement agencies across the state in an effort to keep suspended drivers with prior DUI convictions off the road.

The 'Hot List' program aims to keep the worst drivers off the road when it comes to driving under the influence. The DMV will provide agencies with lists of the driver license numbers of suspended or revoked multipled DUI offenders in their jurisdictions who will then create a list for their officers of the individuals most likely to re-offend.

The list will help law enforcement agencies to enforce DMV's licensing actions to reduce incidents involving suspended or revoked multiple DUI offenders. DMV Director Jean Shiomoto says that research shows 75% of drivers who are convicted of DUI continue to drive despite being suspended or revoked.

'Hot List' was launched in 2011 as a pilot program with 15 participating agencies. The California Department of Motor Vehicles and Office of Traffic Safety are now working to expand the program to include up to 50 law enforcement agencies across the state.

The "list" has many DUI attorneys alarmed.  The fear is that cops will target, stop and detain occupants of vehicles registered to these "hot list" subjects even if there is no proof they are driving.  The CHP and other law enforcement agencies involved have not commented.  

Why Is It Taking So Long For My DUI Case To Be Filed?

Many people are arrested and given a citation or notice to appear for a future Court date only to discover that the District Attorney has not filed charges and there is no case on calendar.  Interestingly, many people do not realize that when the police make an arrest they do not have the power to charge a person with a crime, only the DA has that ability.  Unlike a typical traffic ticket, a DUI is a misdemeanor that must first be reviewed and filed by the county prosecutor before the Court will calendar the matter.  So what are some of the reasons why a case may be delayed?

Perhaps the single biggest reason for prosecutorial delay is that they do not have all of the paperwork in the case.  Most DUI investigations include numerous reports by many different people and each person involved in the process will write a report.  For example, if a cop stops you and another officer shows up to assist in the field sobriety tests or to administer a breath test each officer will be required to write a report of their observations.

Moreover, if the case involves an accident, a different officer will sometimes prepare a report of measurements, witness statements or opinions about the cause of the accident.  When a blood test is given, their are even more people involved such as the person who drew the sample, the officer who transports the sample and delivers it to the lab,  the technician who does the testing and so on...
In some instances there may be two or more breath tests that need to be considered and the records of the machine may need to be obtained.

Many counties are backlogged and do not have the staff to expedite the compilation of all of the reports, evidence and other documents therefore delays occur.  Most attorneys will use this time to submit requests to dismiss or ask that evidence be re-considered or that a supervisor review the case for the possibility of a rejection of the case and dismissal.

You must be patient.  California law allows the DA a full year to file any misdemeanor DUI case and they can take all of that time if need be.  Even in cases where the blood test comes back lower than the legal limit of .08, the DA can file charges of impaired driving if the officer renders an opinion that you were impaired by the alcohol or drugs, prescription or otherwise in your system.

DMV Re-issue fees relating to DUI in California

California loves to charge fees.  There are a litany of fees pertaining to a DUI in Torrance and anywhere else in the state.  Here are a breakdown of the most common types of fees related to a DMV issue in drunk driving cases

Fees for a Suspended License in CA

There are many fees, fines, and costs associated with a driver’s license suspension in California:

• APS reissue fee (under 21 years old): $100.
• APS reissue fee (21 years old and older): $125, required if the DMV upheld the administrative per se suspension after a hearing.
• DUI reissue fee: $55 (this fee is required if you are convicted of VC23152 in criminal Court)
• DUI 2^nd offense:
  • Add court restriction fee: $15.
  • Remove court restriction fee: $20.
• Financial responsibility if you violate the rules by failing to maintain an SR-22:
  • Penalty fee: $250.
  • Reissue fee: $55.

Police Ramping Up DUI Checkpoints

The authorities in the South Bay and Torrance will be deploying DUI checkpoints this holiday season.  Remember, the police do not need to publicize the locations of these enforcement techniques but often do.  Reminder to always use a designated driver if you choose to drink over the Christmas break.  Cops will have no sympathy on those breaking the law by driving while impaired and the phrase "the life you save may be your own" will be reiterated over the next few days.  Be safe!

Refusing To Forget, What Constitutes A Refusal In California

The CA DMV imposes the harshest license consequences for those who refuse to submit to a chemical test after arrested for a DUI.  However, before the DMV may suspend a driver's license for failure to submit to a chemical test, the DMV must make four findings: (1) the officer had reasonable cause to believe the person was driving a vehicle while under the influence of drugs or alcohol; (2) the person was arrested; (3) the person was told that if he or she refused to submit to, or did not complete, a chemical test his or her license would be suspended; and (4) the person refused to submit to, or did not complete, such a test.

"`The question whether a driver "refused" a test within the meaning of the statute is a question of fact. To comply with the law, a `driver should clearly and unambiguously manifest the consent required by the law. Consent which is not clear and unambiguous may be deemed a refusal.' In determining whether an arrested driver's conduct amounts to a refusal to submit to a test, the court looks not to the state of mind of the arrested driver, but to "the fair meaning to be given [the driver's] response to the demand he submit to a chemical test."

How Hematocrit Can Affect Breath Test Results In DUI Cases

In DUI cases numerous medical conditions can influence how blood alcohol testing is done accurately. One big problem when testing a person for a specfic alcohol concentration is to take into consideration Hematocrit levels. Hematocrit represents the fraction of whole blood composed of red cells and is correlated with the acqueous content of the blood, the higher the hematocrit, the lower the concentration of water in the blood and vice versa. In the simplest terms it is a ratio or a formula. In other words, it is a value expressed as a ratio of the solid components of blood (cellular material) to the liquid components of blood (water). In a normal healthy being it can vary the amount of alcohol contained in the blood.  

People with abnormally low hematocrit are sometimes called "Anemic".  Normal hematocrit levels are 45 % for men and 40 % for women.  Perhaps the best way to imagine the concept of hematocrit  in your mind is to compare the sample with a glass full of rocks vs. a glass filled with no rocks. Here is the problem when it is related to DUI chemical testing for ethanol in the blood: The higher the hematocrit equals more solids in the blood, therefore less water and consequently a higher alcohol concentration. A person with lower than normal hematocrit has less solids in their blood, more water and therefore a lower blood alcohol concentration.

What does all this mean as far as DUI defense? Well, studies have concluded that a person whose hematocrit levels are out of whack or not within normal paramaters can have a breath test result with a higher than actual blood alcohol level as much as 14%, more commonly in the range of 10-14 percent variation.