Implied Consent Law – Why you must choose a Chemical Test?
A police officer who arrests a person for driving under the influence must advised that person they may choose either a breath or blood test in compliance with the implied consent law;1 if a person is not advised of the right to choose a test, and takes the test offered without knowing of the right to choose, that fact standing alone will not be a reason to exclude the results of the test taken.
A person arrested for driving under the influence is not only obligated to perform a test but also has the expressed right to have a chemical test performed in order to determine the presence of drugs or alcohol; and the arresting officer must have the test performed if requested.2
If either the blood or breath test is unavailable, the person must submit to the test that is available; if neither are available then the person must submit to a urine test.3
If a person is arrested for driving under the influence of drugs or the combined influence of alcohol and drugs, and they choose a breath test under section 23612(a)(2)(A) of the California Vehicle Code, they will also be required to submit to a blood test to determine the presence of drugs, and if the blood test is unavailable they must submit to a urine test.4
Where a person is arrested for driving under the influence and is transported to a hospital for medical treatment before a test can be given; and at the hospital the person chooses a test under section 23612(a)(2)(A) which is not offered at the hospital; they must choose another test from one that is available at the hospital and must be so advised by the arresting officer.5
While a peace officer must direct or oversee the administration of a chemical test,6 only those authorized by law to withdraw blood are permitted to perform that test; those authorized by law to withdraw blood are a licensed physician, a registered nurse, a licensed vocational nurses, a licensed clinical laboratory scientists or a bioanalysts; also if requested by a peace officer certain unlicensed laboratory personnel regulated by sections 1242, 1242.5, and 1246 of the California Business and Professional Code may perform the test, these include a certified paramedic, and a certified phlebotomy technician.
A person arrested may at their own expense ask to have another test done through a hospital, laboratory or other facility of their choice, however if they are unable to have it done it does not prevent the admissibility of the test given pursuant to the implied consent law.7
There is a requirement that a person who selects a breath test must be informed that the breath sample used for testing is not retained and therefore not available for retesting;8 the person must also be informed that a blood sample at no cost to them will be provided for future testing if they request it;9 the person also must be advised if they request a free blood sample it will become evidence and either party to a criminal prosecution may have it tested and the results would be admissible in any criminal proceeding;10 however the failure to advise a person of a free blood sample after a breath test does not affect the admissibility of the person’s breath test results.11
1 Section 23612(a)(2)(A) of the California Vehicle Code
2 Section 23612(d)(1) of the California Vehicular Code
3 Sections 23612(a)(2)(A), 23612(d)(2) of the California Vehicle Code
4 Sections 23612(a)(2)(B), (a)(2)(C) of the California Vehicle Code
5 Section 23612(a)(3) of the California Vehicle Code
6 Sections 23136(c)(2), 23612(a)(1)(C) of the California Vehicular Code
7 Sections 23158(b) of the California Vehicle Code
8 Section 23614(a) of the California Vehicle Code
9 Section 23614(b) of the California Vehicle Code
10 Section 23614(c) of the California Vehicle Code
11 Section 23614(d) of the California Vehicle Code