DUI 101: Common evidentiary issues in DUI trials, Part 2

The object of this article and self-study test is to discuss evidentiary issues that are common in Driving Under the Influence (DUI) trials. Readers will learn about the implied consent law, refusals, permissive inference instructions, partition ratios, DUI drug offenses and enhancements (Part 1 of this article focused on the admissibility of statements made by a defendant; field sobriety tests (FSTs); breath test results and blood draws).

Implied Consent Law

California Implied Consent Statute: Any person who drives a motor vehicle is deemed to have given consent to chemical testing of breath or blood, for the purpose of determining the alcohol content of the blood, when the person has been lawfully arrested for driving under the influence. (VC § 23612(a)(1)(A).)

Admonition required: If a person is lawfully arrested for driving under the influence of a drug or a combination of a drug and alcohol, the person shall be advised that the person has the choice of submitting to either a blood or breath test. (VC § 23612(a)(2)(B).)

If breath is chosen, s/he must be advised that that no breath sample is retained, and no breath sample will be available for later analysis. (VC § 23614(a).)

Failure to admonish and/or failure to strictly follow the implied consent law does not necessarily violate a defendant's constitutional rights. (People v. Harris, 234 Cal.App.4th 671, 691-692  (2015) [admonition, while not entirely accurate, was not patently false and sufficiently informed defendant that he was required to submit to a blood test under the implied consent law].)

Officer's failure to admonish defendant of choice of breath test, and only advise of the choice of blood, does not violate the Fourth Amendment where defendant freely and voluntarily submitted to the blood test; test results are admissible and suppression properly denied. (People v. Vannesse, 23 Cal.App.5th 440, 447 (2018).)

Consent burden of proof: The prosecution has the burden of proving that the consent was obtained freely and voluntarily based on the totality of the circumstances. (Harris.)

Consent must be freely and voluntarily given: The fact that a motorist is told he will face serious consequences, including criminal penalties if he refuses to submit to a chemical test, does not itself mean that his submission was coerced. Submission to a chemical test, if freely and voluntarily given, is actual consent under the Fourth Amendment. (Harris.) Blood draw deemed nonconsensual and suppressed where officer did not advise of the consequences of failing to submit to a chemical test and the defendant did not consent but rather acquiesced to lawful authority. (People v. Ling, 15 Cal.App.5th Supp. 1 (2017).)

Scope of consent: Blood test for drug was outside the defendant's limited consent for alcohol test and was suppressed. (People v. Pickard, 15 Cal.App.5th Supp. 12 (2017).)

Refusal

Admonition: When a suspected drunk driver is arrested, the person "shall be told that his or her failure to submit to, or the failure to complete, the required breath or urine testing will result in a fine and mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153," and the administrative suspension or revocation of the person's driving privilege by the DMV. (VC § 23612(a)(1)(D).) Officer's failure to give refusal admonition goes to weight, not admissibility, of the evidence. (South Dakota v. Neville, 459 U.S. 553 (1983); People v. Municipal Court (Gonzales), 137 Cal.App.3d 114, 117-118 (1982); People v. Mills, 164 Cal.App.3d 652, 657 (1985).)

What constitutes a refusal? Failure to submit to a blood test unless a warrant is first obtained constitutes a refusal. (People v. Bolourchi, 103 Cal.App.5th 243 (2024).)

Failure to submit to a test unless it is administered by the person's own physician constitutes a refusal. (Payne v. DMV, 235 Cal.App.3d 1514 (1991).)

Failure to submit to test unless the suspect's attorney is present constitutes a refusal. (Ent v. DMV, 265 Cal.App.2d 936 (1968).)

Silence and refusal to choose a test, or ineffectual attempt to blow once during a breath test, is a refusal. (Garcia v. DMV, 185 Cal.App.4th 73 (2010).)

If a defendant selects one test but is physically unable to complete that test, the defendant's refusal to submit to an alternative test constitutes a refusal. (Cahall v. DMV, 16 Cal.App.3d 491 (1971).)

Evidentiary consequences of refusal: Refusal to submit to a test may be used against the defendant in court. (VC § 23612(a)(4).)

Jury may draw adverse inference of consciousness of guilt based on defendant's refusal to submit to a blood test unless a warrant is first obtained. (Bolourchi.)

CALCRIM No. 2130 -- consciousness of guilt: The court may instruct the jury that refusal to submit to a chemical analysis for blood alcohol content may demonstrate consciousness of guilt. (People v. Sudduth, 65 Cal.2d 543 (1966).) There is no sua sponte duty to give this instruction.

Refusal to submit to a chemical test does not, by itself, constitute a violation of Penal Code § 148 (resisting, obstructing, or delaying a peace officer). An arrested person's simple, peaceful refusal to submit to a chemical test is constitutionally protected. However, "[t]he manner of refusal or the defendant's associated conduct may very well support a lawful conviction under" PC § 148. (People v. Valencia, 240 Cal.App.4th Supp. 11 (2015).)

Lawful arrest: When the defendant's arrest is not lawful, the implied consent law and any penalties for not complying with that law, e.g., defendant's refusal, may not be applied to the defendant. (Music v. DMV, 221 Cal.App.3rd 841.)

Enhancement allegation proof required: (VC §§ 23577, 23612) CALCRIM No. 2131: To prove this allegation, the People must prove that: (1) a peace officer asked the defendant to submit to a chemical test to determine his/her BAC or whether he/she had consumed a drug; (2) the peace officer fully advised the defendant of the requirement to submit to a test and the consequences of not submitting to a test; (3) the defendant willfully refused to submit to a test/complete the test; and (4) the peace officer lawfully arrested the defendant and had reasonable cause to believe that defendant was driving a motor vehicle in violation of VC §§ 23140, 23152, or 23153.

Permissive inference

In a prosecution under Vehicle Code § 23152(a), statutes provide the amount of alcohol in the defendant's blood at the time of the test as shown by chemical analysis of the defendant's blood or breath shall give rise to a rebuttable presumption as to whether the defendant was under the influence at the time of the offense. (VC § 23610; EC §§ 600-607.) Vehicle Code § 23610(a)(3) establishes a rebuttable presumption that if the blood alcohol level of the person was 0.08% or more at the time of the chemical analysis, then they were under the influence at the time of the offense (driving).

Likewise, in a prosecution under VC § 23152(b), there is a statutory rebuttable presumption that the defendant had a blood alcohol level of 0.08% or more at the time of the offense (driving) if the defendant had such a level at the time of the chemical test performed within three hours after driving. (VC § 23152(b); Coffey v. Shiomoto, 60 Cal.4th 1198 (2015).)

Because presumptions may violate a defendant's constitutional rights, the jury instructions are cast as giving rise to only permissive inferences. (People v. Beltran, 157 Cal.App.4th 235 (2007) [distinguishing between "rebuttable presumptions" and "permissive inferences"].)

Permissive inference jury instructions: CALCRIM No. 2110: "If the People have proved beyond a reasonable doubt that the defendant's blood alcohol level was 0.08 percent or more at the time of the chemical analysis, you may, but are not required to, conclude that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense." [Applies to VC § 23152(a) offense.]

CALCRIM No. 2111: "If the People have proved beyond a reasonable doubt that a sample of the defendant's (blood/breath) was taken within three hours of the defendant's [alleged] driving and that a chemical analysis of the sample showed a blood alcohol level of 0.08 percent or more, you may, but are not required to, conclude that the defendant's blood alcohol level was 0.08% or more at the time of the alleged offense." [Applies to VC § 23152(b) offense.]

The court must not give the bracketed paragraphs of CALCRIM nos. 2110 and 2111 (quoted above) if there is no substantial evidence that the defendant's blood alcohol level was at or above 0.08% at the time of the test.

A trial court may properly instruct with CALJIC No. 12.61.1 (which is nearly identical to the permissive inference provision of CALCRIM No. 2111) despite there being evidence rebutting the inference. (Beltran.)

The presence of conflicting evidence on the predicate question of whether there is sufficient evidence to trigger the inference instructions does not preclude giving the instructions. The statutes underlying such instructions create rebuttable presumptions, the application of which disappears if evidence sufficient to negate the presumed fact is presented. "But because the instructions (properly) do not, evidence negating the presumed fact will not vitiate the legitimate inferences set forth by such instructions." (People v. Yushchuk, 28 Cal.App.5th 120 (2018).)

Partition ratio

What is a partition ratio? Partition ration is the relationship between the grams of ethanol measured in the breath (while exiting the mouth), compared with the grams of ethanol measured in the venous blood, at the same point in time.

Breath testing machines (i.e., PAS, ECIR, Datamaster) convert the concentration of alcohol in the breath to the corresponding alcohol concentration in the blood using the "partition ratio."

The Vehicle Code defines that "partition ratio" as 2100:1.

Partition ratio variability in breath alcohol content testing may be admitted to defend against a driving under the influence charge under VC § 23152(a). (People v. McNeal, 46 Cal.4th 1183 (2009).) A defendant charged with VC § 23152(a) may present competent evidence about partition ratio variability to rebut the presumption of intoxication. (Ibid.)

Partition ratio variability in breath alcohol content testing is inadmissible in defending a charge of driving with a blood-alcohol concentration of 0.08 percent or above under VC § 23152(b). (People v. Bransford, 8 Cal.4th 885, 892-893 (1994).) Because the statute defines the crime in terms of specific grams of alcohol per liter of breath, a defendant charged with VC § 23152(b) may not present evidence that the defendant's particular partition ratio is different from the state standard (or that partition rations may vary from person to person) when the defendant has elected to take a breath test. (Bransford.)

Preventing a defendant from introducing evidence of variability between breath- and blood-alcohol tests does not violate due process or equal protection. (People v. Ireland, 33 Cal.App.4th 680 (1995).)

Defendant may challenge partition ratio from urine to blood because statute defines violation in terms of blood or breath percentage, not urine. (People v. Acevedo, 93 Cal.App.4th 757 (2001).)

DUI drug offenses (VC §§ 23152(c), (e), (f))

Definition of drug: "[A]ny substance or combination of substances, other than alcohol, which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that an ordinarily prudent and cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions." (VC § 312.)

Drug must actually impair driving ability: To find guilt of DUI of a drug offense, "the . . . drug(s) must have so far affected the nervous system, the brain, or muscles [of the individual] as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties." (People v. Canty, 32 Cal.4th 1266 (2004).)

"It is not enough that the drug could impair an individual's driving ability or that the person is under the influence to some detectible degree. Rather, the drug must actually impair the individual's driving ability." (People v. Torres, 173 Cal.App.4th 977 (2009).)

"[T]here is not yet a commonly administered and standardized medical test equivalent to the blood-alcohol concentration test that accurately determines a person's level of impairment from lipophilic, psychoactive drugs such as marijuana." (People v. Murphy, 80 Cal.App.5th 713 (2022).) Thus, proving a person drove under the influence of a drug like marijuana can require use of evidence that includes the way the person drove and objective symptoms of intoxication. (Ibid.)

In marijuana cases, the amount of THC present in a blood sample taken from a driver after being arrested may be probative regarding the driver being under the influence. (Murphy.) If a blood test is unavailable, consent is deemed given for chemical testing of a urine and person shall submit to urine test. (VC § 23612(a)(1)(B).)

Breath or blood test: A person arrested for driving under the influence of drugs, or the combined influence of drugs and alcohol, has choice of a blood or breath test. (VC § 23612(a)(2)(B).) A person who chooses a breath test may also be required to submit to a blood test if the officer has reasonable cause to believe that the additional test will reveal evidence of the person being under the influence of drugs. (VC § 23612(a)(2)(C) [officer must state facts underlying this conclusion in his or her report].)

Urine test: If the person arrested is incapable of completing a blood test, s/he must submit to and complete a urine test. (VC § 23612(a)(2)(C).)

Prior enhancements

Proof required of date of offense: Prior offense must have been committed within 10 years of current offense. (VC §§ 23540, 23546, 23550.) Measured from the date of the commission of the prior offense to the date of the commission of the new offense. (VC § 23550; People v. Snook, 16 Cal.4th 1210 (1997).)

Based on how the statute is worded, a prior offense may have been committed after current offense. (VC § 23217; People v. Munoz, 102 Cal.App.4th 12 (2002); People v. Albitre, 184 Cal.App.3d 895 (1986).)

Qualifying offenses are listed in VC §§ 23152, 23153, 23103.5. (See VC § 23550.)

Out-of-state and federal DUI convictions constitute priors if the convictions are based on legislation substantially similar to California legislation. (VC §§ 23626; 13352(d).)

Convictions that have been dismissed under PC § 1203.4 count as priors. (PC § 1203.4(a).)

But not constitutionally invalid convictions (VC § 41403) or juvenile adjudications (WIC § 203; People v. Lopes (2015) 238 Cal.App.4th 983, 987).

Bifurcation motion: A trial court has the authority to grant a defendant's request to bifurcate the prior convictions from the substantive DUI trial. (People v. Weathington, 231 Cal.App.3d 69 (1991).)

Bifurcation of priors should be granted when the defendant will be unduly prejudiced if bifurcation is not granted. (People v. Calderon, 9 Cal.4th 69 (1994).) Factors that affect the potential for prejudice include the degree to which the prior offense is similar to the charged offense, how recently the prior conviction occurred, and the relative seriousness or inflammatory nature of the prior conviction as compared with the charged offense. (Ibid.)

Denial of bifurcation would not result in prejudice when, even if bifurcation were ordered, the jury would still learn of the prior conviction anyway. (Calderon.)

Court has no discretion to bifurcate properly-joined charges where a prior conviction is a substantive element of one of the charges. (People v. Profitt, 8 Cal.App.5th 1255 (2017).)