Implied Consent Law for DUI
Does refusal to submit to a blood test result in a jury instruction for consciousness of guilt? Consciousness of guilt means the jury can infer that the driver refused the test because he or she knew that they were guilty of driving under the influence. That was the question in People v. Boularchi (2024, A167289). There, the police observed bad driving and pulled Boularchi over on suspicion of driving under the influence. The evidence at the scene indicated Boularchi may have been smoking marijuana, and his demeanor showed drug use. At first he agreed to a blood test for chemical substances, but then reneged and told the officer that he would only agree to a blood draw if the officer obtained a warrant. The officer obtained a warrant, and the test confirmed a prescription drug and THC in the blood.
The district attorney charged Boularchi with driving under the influence of marijuana and a prescription drug. The case went to trial. During the trial, the district attorney asked for an instruction under CALCRIM No. 2130. The instruction reads, in part, “If the defendant refused to submit to such a test after a peace officer asked (him/her) to do so and explained the test’s nature to the defendant, then the defendant’s conduct may show that (he/she) was aware of (his/her) guilt.” On appeal, Bouarchi argued that he “had a constitutional right under Missouri v. McNeely (2013) 569 U.S. 141 (McNeely) to demand that police obtain a warrant before he submitted to a blood draw, so his assertion of that right should not be deemed a refusal to test.” The Court of Appeal, First Appellate District, denied this claim and held that United States Supreme Court precedent permits the states to use consciousness of guilt instructions under implied consent laws. Implied consent means that to obtain a driver’s license in the state the person has to agree to submit to a chemical test when arrested on suspicion of driving under the influence.
The Court of Appeal explained the current status of implied consent laws: “Speaking for a plurality of four justices in Mitchell, Justice Alito summarized the state of the law as follows: ‘We have held that forcing drunk-driving suspects to undergo a blood test does not violate their constitutional right against self-incrimination. [Citation.] Nor does using their refusal against them in court. [Citation.] And punishing that refusal with automatic license revocation does not violate drivers’ due process rights if they have been arrested upon probable cause, [citation]; on the contrary, this kind of summary penalty is ‘unquestionably legitimate.’ ‘ (Mitchell, supra, 588 U.S. at p. 847 (plur. opn. of Alito, J.).) When the Mitchell and McNeely pluralities and the Birchfield majority opinion are read together, five current justices on the United States Supreme Court have joined an opinion acknowledging that—short of criminal conviction—states may use implied consent laws to impose a variety of adverse consequences on DUI arrestees who refuse blood testing.” Given this status of the law, the Court of Appeal upheld Boularchi’s conviction. The Court of Appeal found that Boularchi’s request to obtain a warrant was, in fact, a refusal to take a blood test under the implied consent law. Therefore, the jury could properly use the refusal as evidence of a consciousness of guilt in his criminal trial.
What does this mean for California drivers? First, while the state cannot criminally punish drivers for refusal, the DMV can still move to suspend a license or if the case goes to trial the district attorney can request evidentiary instructions like consciousness of guilt. Therefore, a driver should consent in must circumstances to avoid these consequences. But if the driver refused consent for the blood draw, the reason why should be explained. Perhaps the person was terrified of needles, or had a bad experience with a blood draw in the past. Perhaps there was a medical condition that would be exacerbated by a blood draw. The goal would be to find a reason for the denial that would mitigate the jurors ability to use the refusal to find consciousness of guilt. If the instruction was rebutted, the jury could determine that the refusal was not due to consciousness of guilt.
