Section 2130 | CALCRIM (Jury Instructions)

equals one refusal; and, one suspension.” (Dunlap v. Dept. of Motor Vehicles (1984)
156 Cal.App.3d 279, 283 [202 Cal.Rptr. 729].)
Defendant Refuses Request for Urine Sample Following Breath Test
In People v. Roach (1980) 108 Cal.App.3d 891, 893 [166 Cal.Rptr. 801], the
defendant submitted to a breath test revealing a blood alcohol level of 0.08 percent.
The officer then asked the defendant to submit to a urine test in order to detect the
presence of drugs, but the defendant refused. (Ibid.) The court held that this was a
refusal under the implied consent statute. (Ibid.)
Sample Taken by Force After Refusal
“[T]here was no voluntary submission on the part of respondent to any of the blood
alcohol tests offered by the arresting officer. The fact that a blood sample ultimately
was obtained and the test completed is of no significance.” (Cole v. Dept. of Motor
Vehicles (1983) 139 Cal.App.3d 870, 875 [189 Cal.Rptr. 249].)
Refusal Admissible Even If Faulty Admonition
Vehicle Code section 23612 requires a specific admonition to the defendant
regarding the consequences of refusal to submit to a chemical test. If the officer
fails to properly advise the defendant in the terms required by statute, the defendant
may not be subject to the mandatory license suspension or the enhancement for
willful refusal to complete a test. (See People v. Brannon (1973) 32 Cal.App.3d
971, 978 [108 Cal.Rptr. 620]; People v. Municipal Court (Gonzales) (1982) 137
Cal.App.3d 114, 118 [186 Cal.Rptr. 716].) However, the refusal is still admissible in
criminal proceedings for driving under the influence. (People v. Municipal Court
(Gonzales), supra, 137 Cal.App.3d at p. 118.) Thus, the court in People v.
Municipal Court (Gonzales), supra, 137 Cal.App.3d at p. 118, held that the
defendant’s refusal was admissible despite the officer’s failure to advise the
defendant that refusal would be used against him in a court of law, an advisement
specifically required by the statute. (See Veh. Code, § 23612(a)(4).)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 293–303.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[2][f] (Matthew Bender).
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own intoxication prevented him or her from understanding the admonition, the
defendant may be held responsible for refusing to submit to a chemical test.
(Morphew v. Dept. of Motor Vehicles (1982) 137 Cal.App.3d 738, 743–744 [188
Cal.Rptr. 126]; Bush v. Bright (1968) 264 Cal.App.2d 788, 792 [71 Cal.Rptr. 123].)
Defendant Incapable of Understanding Due to Injury or Illness
When the defendant, through no fault of his or her own, is incapable of
understanding the admonition or of submitting to the test, the defendant cannot be
penalized for refusing. (Hughey v. Dept. of Motor Vehicles (1991) 235 Cal.App.3d
752, 760 [1 Cal.Rptr.2d 115].) Thus, in Hughey, supra, 235 Cal.App.3d at p. 76