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San Diego Diego DUI focus- Know your rights part 2

On Behalf of | Jan 5, 2014 | General Criminal Defense |

I get the question: How do you exercise your rights?  I do not want to piss off the police officer.

It is important for citizens to know their rights.  As a San Diego DUI and Criminal defense attorney, I can tell you that most people do not use their rights when being investigated by the police.  Most of the people want to be compliant and non-confrontational with the officer as possible in a San Diego DUI or San Diego criminal defense case.  They feel if they are compliant the officer will let them go, usually because the person has never been in contact with police before when they are the ones being investigated.  It may be you…a friend…or a loved one as the focus of a San Diego DUI or criminal defense investigation.

You have to know your rights and use them….when being investigated for a San Diego DUI or criminal defenses case.  I have seen innocent people give statements and then remember something and change their story….only to have the officer mad and thinking they are lying.

The best thing to do is let the officer do their job…while you keep your rights and say the following:

Best Practices for exercising your rights safely in a San Diego DUI or criminal defense case.  Below is a picture of levels of police encounters.  In a San Diego DUI or San Diego criminal defense case it is important to always get a sense of where you are in the course of an investigation.

Hire a Proactiveaffordable, and quality defense when you are facing San Diego DUI charges.  Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case.  Contact the Law Office of Mark Deniz now for a free case evaluation.

Here is an example where this has become an issue on court.

In November 2010 a California appellate court held in People v Jackson that a trial court committed error in allowing evidence of a DUI suspect’s refusal to submit to a PAS test.  The justices in Jackson held it made little sense to grant a statutory right of refusal to the motorist yet allow the prosecution to admit evidence of that refusal to establish consciousness of guilt. The Court in Jackson based its opinion on statutory language that confers a right of refusal upon a driving under the influence suspect as well as the Court’s interpretation of the Legislative intent in codifying the right to refuse a PAS test and the officer’s obligation to inform a defendant of that right. 

189 Cal.App.4th 1461 (2010)117 Cal. Rptr. 3d 775

THE PEOPLE, Plaintiff and Respondent.
LEROY B. JACKSON, Defendant and Appellant.

No. A128782.

Court of Appeals of California, First District, Division Three.

November 12, 2010.

1“>1Defendant appealed to the appellate division of the superior court, which affirmed his convictions without opinion. Defendant sought relief in this court and we granted defendant’s petition for transfer in order to address the issue of whether the trial court erred by admitting evidence that defendant refused to take a preliminary alcohol screening (PAS) test. For the reasons set forth below, we hold that the trial court erred by admitting evidence of defendant’s refusal to take the PAS test. Nevertheless, because the trial court’s error was harmless, we affirm defendant’s convictions.


On September 20, 2005, the San Francisco District Attorney’s Office filed a misdemeanor criminal complaint charging defendant in two counts with driving under the influence of alcohol and driving with a blood-alcohol concentration of 0.08 percent or more, in violation of sections 23152, subdivisions (a) and (b), respectively. Before trial, defendant filed a supplemental motion in limine to exclude evidence of his refusal to take the PAS test. At a hearing on the motion, defense counsel argued that evidence of defendant’s refusal to take the PAS test should be excluded because he had a statutory right to refuse the PAS test, therefore his refusal was not probative of his consciousness of guilt.2“>2 In denying defendant’s motion, the trial court ruled as follows: “The test is voluntary and the determining factor is that if the defendant had refused to take a field sobriety test, would that refusal be admissible. His [PAS] test is considered one of the field sobriety tests to help the officer determine whether or not to arrest the defendant. Because of that, I will allow the defendant’s refusal to come in.”

U.S. v. Foster (4th Cir. 1962) 309 F.2d 8, 14-15 (in prosecution for tax evasion, defendant was entitled to invoke the attorney-client privilege and his invocation of the privilege should not have been opened to an inference of guilt). Respondent, on the other hand, contends that the trial court correctly admitted evidence of defendant’s refusal to take the PAS test. According to respondent, the PAS test, as described in the statute, is an FST, and courts have routinely admitted evidence of a refusal to take FST’s as consciousness of guilt, citing Marvin v. Department of Motor Vehicles (1984) 161 Cal.App.3d 717, 719-720 [207 Cal.Rptr. 793] (Marvin) (driver’s refusal to exit vehicle and participate in FST’s may be construed as consciousness of guilt). Having carefully considered the competing views of the parties, and the language of section 23612, we conclude that defendant’s argument is the more persuasive because it is logically consistent with the clear intent of the statute and serves to protect the statutory right defined therein.

(2) We first note that section 23612 clearly and unambiguously states that before administering a PAS test, “[t]he officer shall advise the person . . . of the person’s right to refuse to take the preliminary alcohol screening test.” (§ 23612, subd. (i), italics added.) Patently, the Legislature not only conferred upon citizens a right to refuse to take the PAS test but, in addition, required law enforcement to inform citizens of such right. As a matter of simple logic, it makes little sense to grant a right of refusal yet allow the prosecution to admit evidence of that refusal to establish consciousness of guilt. Respondent’s interpretation of the statute would, if adopted, effectively abrogate the express right of a detainee to refuse the PAS test by allowing evidence of his or her refusal before the jury. We decline to adopt an interpretation of section 23612 that is so at odds with the plain language of the statute and fails to advance the Legislature’s clearly expressed intent to provide detainees with a right of refusal to the PAS test.3“>3 (See Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 290 [64 Cal.Rptr.3d 661, 165 P.3d 462][courts must construe a statute in a way “that comports most closely with the Legislature’s apparent intent, with a view to promoting rather than defeating the statute[‘s] general purpose”].)

Additionally, while not controlling, we find the rationale of the Court of Appeal, First District, Division One, in People v. Zavala (1966) 239 Cal.App.2d 732, 736 [49Cal.Rptr. 129] (Zavala) lends support to the 4“>4 At trial, the doctor who examined the defendant at the Oakland Nalline Clinic after his arrest testified before the jury that the defendant refused to submit to a Nalline test. (Zavala, supra, 239 Cal.App.2d at p. 736.) On appeal, the defendant contended it was error for the trial court to admit into evidence over his objection the doctor’s testimony concerning his refusal to submit to a Nalline test. (Ibid.)

The Zavala court agreed with the defendant’s contention. The court noted that because Health and Safety Code former section 11723 provided that an arrestee must give written consent before being administered the test, “the Legislature intended to provide the arrested person with the `right to refuse’ to take the Nalline test.” (Zavala, supra, 239 Cal.App.2d at p. 739.) The court concluded that because “such right would be rendered valueless if the test could nevertheless be given without the arrested person’s consent, . . . the Legislature has by the enactment of section 11723 made inadmissible in evidence all Nalline tests given in situations encompassed within the statute but without written consent.” (Ibid., italics added.)

The Zavala court then turned to the question of “the admissibility in evidence of the fact of the refusal to submit to the Nalline test rather than with the admissibility of the results of the test.” (Zavala, supra, 239 Cal.App.2d at p. 740.) The court stated that cases applying the “`admissions by conduct’” rule under the general principle that “acts of an accused designed to escape arrest, trial or conviction afford an inference of consciousness of guilt and are receivable against him as implied or tacit admissions” (ibid. [citing and discussing cases]), did not govern the refusal to take a Nalline test. In this regard, the court concluded: “In those cases the person arrested did not have a `right to refuse’ to take the . . . test. Since he did not have such right, his refusal to take the test constituted conduct tending to show a consciousness of guilt. In the case of Nalline tests a person is given the `right to refuse’ by section 11723. Such right, however, would be rendered Zavala, supra, 239 Cal.App.2d at p. 741.)

(3) The Zavala court’s reasoning concerning the right to refuse the Nalline test applies with even greater force to defendant’s refusal to take the PAS test. In Zavala,the right to refuse was inferred from the statute’s written consent requirement, whereas section 23612 expressly grants a right to refuse, and requires law enforcement to inform citizens of such right. Moreover, just as in Zavala, the “admissions by conduct” rationale for admission of a refusal to take a PAS test has no probative force, where, as here, the right to refuse is legislatively granted. Therefore, in accord with the reasoning in Zavala, we conclude that because defendant had a “`right to refuse’” to take the PAS test under section 23612, the trial court erred by allowing the arresting officer to testify that defendant refused to take the test. (239 Cal.App.2d at p. 741.)

(4) Respondent, in an effort to forestall the conclusion we reach here today, argues that the Marvin case, decided by the Court of Appeal, First District, Division One, provides support for the trial court’s admission of defendant’s refusal to take the PAS test. We disagree. In Marvin, the court held that where an officer observed a person driving her car around in circles in a parking lot, and upon questioning her further observed that she had a strong odor of alcohol on her breath and bloodshot eyes, the driver’s subsequent refusal to exit her vehicle and perform an FST was “reasonably interpreted as a consciousness of guilt” for purposes of determining whether probable cause existed to arrest her on suspicion of drunk driving. (Marvin, supra,161 Cal.App.3d at pp. 719-720.) Marvin involved a driver’s refusal to participate in the standard FST’s and did not address a driver’s refusal to take the PAS test. As noted above, the PAS test is distinguished from the standard FST’s because it carries a statutory right to refuse the test. Thus, Marvin and the cases cited therein, which stand for the general principle that evidence of a refusal to submit to a standard FST is admissible as consciousness of guilt, do not govern the more specific issue we confront here of whether evidence of a person’s refusal to submit to a PAS FST is similarly admissible where the right to refuse the test is granted by statute. In sum, we agree with defendant’s contention that it was improper to allow the jury to hear evidence that defendant exercised his statutory right to refuse the PAS test.

Having determined that evidence of defendant’s refusal to take the PAS test should not have been presented to the jury, we further conclude that any error was harmless because it was not “reasonably probable that a result more favorable to [defendant] would have been reached” had such evidence not People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]; see People v. Welch(1999) 20 Cal.4th 701, 750 [85 Cal.Rptr.2d 203, 976 P.2d 754].) First, as more fully set forth above, the prosecution’s evidence of defendant’s guilt was particularly strong. The arresting officer testified to defendant’s erratic driving, the odor of alcohol emanating from his vehicle, his watery eyes and unsteady gait, and also described how defendant displayed multiple indicators of impairment on every FST administered to him.5“>5 In addition, defendant’s blood-alcohol ratio was tested on two occasions. Each test resulted in a BAC of 0.10 percent, establishing that defendant’s BAC clearly exceeded the legal limit of 0.08 percent.

Moreover, regarding any potential for prejudice, although Officer Crawford testified that defendant refused the PAS test, he also informed the jury that defendant had a right to refuse to take the test. Thus, the jury knew defendant had a right to refuse the PAS test, and also knew that defendant participated fully in all the other FST’s the officer required of him.

Furthermore, the prosecutor did not argue that defendant’s refusal to take the PAS test was evidence of his consciousness of guilt. Indeed, the prosecutor’s sole reference to the PAS evidence in his closing argument was as follows: “Next—the field sobriety test he [(Crawford)] was going to administer was the PAS test, the hand-held alcohol test to see if, in fact, it was over.08. He [(defendant)] refused. It was his right to refuse but it’s something also the officer can consider. So at that point, he was placed under arrest, 4:28 a.m., not even a half hour from when he was observed driving.” The prosecutor’s sole reference to defendant’s refusal to take the PAS test occurred during his description of the officer’s decision to arrest defendant for being under the influence. There was no emphasis or focus by the prosecutor on defendant’s refusal to take the PAS test nor any entreaty that the jury should attach significance to it. Rather, the prosecutor acknowledged to the jury that defendant had a right to refuse the test, and did not argue to the jury that it should consider defendant’s refusal as evidence of his consciousness of guilt of the crime.

In sum, evidence that defendant refused to take the PAS test played little or no role in the prosecution’s case against him and the other evidence of his guilt was substantial. Thus, we are convinced that the trial court’s error in 6“>6 Accordingly, defendant’s convictions must be affirmed.


The judgment is affirmed.

Pollak, Acting P. J., and Siggins, J., concurred.


1“>1 Further statutory references are to the Vehicle Code unless otherwise stated.

2“>2 Section 23612, more fully described below, states in part: “The officer shall advise the person . . . of the person’s right to refuse to take the [PAS] test.” (§ 23612, subd. (i).)

3“>3 Defendant posits that the statutory right to refuse the PAS test is analogous to the attorney-client privilege and, like the decision to invoke the attorney-client privilege, should not have been presented to the jury. Defendant’s analogy is close to the mark. (See, e.g., Evid. Code, § 913, subd. (a) [stating that the court and counsel may not comment upon the fact that a witness exercised a privilege “not to testify with respect to any matter”]; see also People v. Lopez (1999) 71 Cal.App.4th 1550, 1554 [84Cal.Rptr.2d 655] [after a court determines a witness has a valid 5th Amend. right not to testify, “it is . . . improper to require him to invoke the privilege in front of a jury . . .”].)

4“>4 The Zavala court referred to the test described in Health and Safety Code former section 11723 (section 11723) as the “Nalline test” after the synthetic opiate antinarcotic drug used in the test. (Zavala, supra, 239 Cal.App.2d at pp. 736-737.) Former section 11723 stated that where “`a person has been arrested for a criminal offense and is suspected of being a narcotic addict, a law enforcement officer having custody of such person may, with the written consent of such person,request the city or county health officer . . . to administer to the arrested person a test to determine . . . whether the arrested person is a narcotic addict.’” (239 Cal.App.2d at pp. 736-737, italics added, quoting former § 11723.) After the repeal of former section 11723, its substantive provisions, including the requirement of written consent by the arrestee to any testing for addiction to a controlled substance, were included within Health and Safety Code section 11552. (See Historical and Statutory Notes, 40 pt. 3 West’s Ann. Health & Saf. Code (2007 ed.) foll. §§ 11721-11729, p. 198.)

5“>5 At oral argument, defendant’s appellate counsel argued that several discrepancies in the report prepared by Officer Crawford showed that Crawford may have confused the particulars of defendant’s arrest with those of another arrestee; hence the court’s error in admitting evidence of defendant’s refusal to take the PAS test was not harmless. Our review of the excerpts of Officer Crawford’s testimony cited by appellant’s counsel does not alter our conclusion that the error here was harmless.

6“>6 Assuming without deciding that, as asserted by defendant, the introduction of evidence at trial of his refusal to take the PAS test was also a violation of his federal due process rights, we conclude that any such error was harmless under the standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824] (federal constitutional error can be held harmless if reviewing court is “able to declare a belief that it was harmless beyond a reasonable doubt”).



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