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Denial of Choice of Test


California State Law states that if a person is lawfully arrested for a DUI, that person has impliedly consented to submit to a chemical test to determine his or her blood or breath alcohol level. A DUI suspect does not, therefore, have a legal right to refuse to submit to at test.

However, State Law also gives the choice of test to the suspect. A person may choose a breath test or a blood test, unless one of those tests is not available, in which case the suspect must submit to the remaining available test. The question arises, what happens if a person chooses an available test and the police deny this choice and insist on the alternative test?

A denial of choice of test in a DUI case ought to result in suppression of the test results. However, the Courts in California have decided that this is not the case. If a person is denied his choice of test, the remaining test results are still good evidence at trial as the taking of the test does not violate a persons right against unreasonable search and seizure. However, defense counsel should request a jury instruction to the effect that the denial of choice may be taken into account in determining the weight to be given to the test results.

However, when a police agency systematically denies test choices and insists on a particular test in every case, evidence suppression may be a remedy as defendants are then denied equal protection of the law. Of course, it may be very difficult to prove that a police agency is routinely and systematically denying suspects their choice of test.

In a “refusal” case, if a person consents to one test and the police insist on an alternative test taken under protest and without consent, the “refusal” is not considered a refusal in law and the normal penalties for a “refusal” do not apply. The courts have decided that if the chosen test is available, there is no exigency allowing the police to insist on the remaining test. However the results of the test will still be valid.

This is a very confusing aspect of DUI Defense Law in California and makes little sense to this particular Los Angeles DUI Defense Lawyer. The courts have performed mental gymnastics to justify the police denying a choice of test to a DUI suspect. The underlying theme is the unwillingness of courts to vacate DUI convictions and the courts willingness to extend police powers to facilitate the successful prosecution of DUI cases. This is considered in the public interest, at the expense of individual rights. Not the most American of thought processes.