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The demands for California’s implied consent law are clearly stated in Vehicle Code § 23612. This code also includes the information an officer must give a suspect who has been arrested for driving while intoxicated. The wording of the law is mandatory; it states that “the officer shall advise the person” recurrently. Yet, regardless of the code, if the officer intentionally fails to inform the suspect of the implied consent details, it is not enough justification to suppress the results of the blood-alcohol test. In other words, Veh C § 23157 offers those arrested for driving under the influence “a right without a remedy.” Veh C § 23612 clearly states:
It often happens that the officer fails to provide this choice between the three types of tests. Many officers find the urine tests to be unpleasant, or that a blood sample takes too much time to be withdrawn. The breathalyzer can be found at the police station, thus is often the most convenient. The machine is clean and provides a quick assessment to enable an arrest and booking decision. Consequently, many officers make the choice for the suspect by simply withholding this information and telling the suspect they must take a breath test. Although a blatant disregard for the suspect’s rights is still not enough to justify concealing the test results ([People v. Brannon, 32 Cal.App.3d 971, 108 Cal.Rptr. 620 (5th Dist.1973)]), there can be positive uses of the situation. On cross-examination at trial, the defense is allowed to reveal the officer’s violation of the implied consent statute. This fact alone can bring doubt to the officer’s integrity and suggest the possibility that he/she did not adhere to other procedures (such as field sobriety tests or a proper assessment of the breath test). |
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