Tuesday, November 22, 2011

When a "Refusal" is Cured or is not a California DUI Refusal by agreeing to submit to a blood or breath test

When you are offered to submit to a chemical test in the street, it becomes an interesting question: "Do I HAVE to?"

Unless you are under 21 or on California DUI probation, you do not have to blow in the hand-held gadget on the street.

What if the officer explains you must submit to a chemical test in the street, you may look around and think: “Wait a minute, there’s no (big) breath test machine or blood technician out here in the street.”

Subsequently agreeing and submitting to a chemical test should never be deemed a refusal once you finally arrive at a location where there is actually a breath test machine or blood vampire.

California considered the problem in a San Diego DMV hearing. There was not a blood or breath test at the time of the offer & initial refusal. They were in the street.

“There was no available test pending at the time of the initial refusal, and thus even the admitted delay in consenting to the test did not make any difference under all the circumstances, with respect to the main purposes of the statute (obtaining an effective test and keeping impaired drivers off the road). Since the purposes of the statute are not mainly punitive in nature, the Department’s interpretation of these facts is unduly strict.” [Eberle v DMV (DCA4 - 2/23/07) 2007 Cal. App.Unpub. LEXIS 1487, citing Ellis v. Pierce, (1991) 230 Cal.App.3d 1557, 1561]

Eberle v DMV (DCA4 – 2/23/07) 2007 Cal. App. Unpub. LEXIS 1487 was a San Diego refusal case mentioned in this new "Refusal" Article by a San Diego DUI criminal defense attorney. San Diego’s Court of Appeals essentially held:

When a person arrested refuses chemical test to Cop No. 1, but a delay occurs and person is handed over to Cop No. 2 who is clueless about any chemical test refusal.

Cop No. 2 says, “Will you submit to blood or breath?” Person then says, “Blood.” And blood is duly drawn.

At the San Diego Administrative Per Se hearing, DMV abused its discretion by concluding Respondent refused. On writ, trial court says: “Not really a refusal.”

DMV appeals, Court of Appeals says trial court used independent judgment and had substantial evidence to overrule DMV Hearing Officer. But the court noted: “He admitted that in his own testimony. But the problem I have with it is this was no test being administered or likely to be administered then. Perhaps if the officer had pulled out the . . . device and he said no I’m not going to blow into that, it might be a little stronger case for a refusal. But this was no ability, this was no intent at that time to give a test. And that’s why I’m concerned, is the time of this and the location. Saying out on the street corner, no, I don’t want to take any of your tests versus being in a lab room saying you have to choose between that breath machine or a blood draw and saying no way, I’m not going to give you anything. To me those are two different situations. The timing and location [are] significantly different.”

In real life, people often hesitate. Humans frequently change their minds. In Re Smith, 115 Idaho 808, 770 P. 2d 817 (Ct. App 1989) allowed a driver to change his mind and recant the refusal. Practical courts reasonably understand this.

Courts have adopted differing views as to whether or not a driver should be allowed to cure his prior refusal and under what circumstances can a driver cure or rescind a prior refusal. Respondent urges the Department to adopt the more flexible standard which has been adopted by several other states including Idaho, New Mexico, and Kansas. In Standish v. Dept. of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984) the Supreme Court of Kansas adopted a five part test to determine whether a driver could legally effect a cure or rescission.

Lawyers reasonably content that the administration of the test should be encouraged and the person arrested should be given every reasonable opportunity to submit to it. For this reason, we hold that an initial refusal may be changed or rescinded, and if rescinded in accordance with the following rules, cures the prior refusal.

To be effective, the subsequent consent must be made:

(1) within a reasonable time after the prior first refusal;

(2) when a test administered upon the subsequent consent would still be accurate;

(3) when testing equipment is still readily available;

(4) when honoring the request will result in no substantial inconvenience or expense to the police; and

(5) when the individual requesting the test has been in the custody or the arresting officer and under observation for the whole time since arrest.

Standish v. Dept. of Revenue, 683 P.2d 1276, 1280 (1984)