Cal.App.Div.: Not giving the implied consent law’s admonitions doesn’t make the BAC test result inadmissible; totality of circumstances of consent still applies

Not giving the implied consent law’s admonitions doesn’t make the BAC test result inadmissible. The totality of the circumstances for consent can still be considered. Remanded. People v. Agnew, 2015 Cal. App. LEXIS 1032 (App.Div. Santa Clara Oct. 26, 2015):

Although providing the admonition about the consequences of withdrawing consent would be considered in the totality of the circumstances surrounding the consent, the admonition is not required in order to find voluntary consent. Requiring the admonition as a condition for voluntary consent would, in effect, elevate the statutory admonition to a constitutional requirement under the Fourth Amendment. United States Supreme Court cases and California cases have rejected similar advisements as constitutional requirements.

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In all the above cases addressing consent under the Fourth Amendment, of course, the Supreme Court was addressing the purported failure to inform persons of the right to refuse voluntary consent, where there was no advance consent and where the consequences of refusing consent were not codified. Here, respondent already provided advance consent under the implied consent law, and respondent is relying upon the failure to inform him of the consequences of withdrawing that consent, which are stated in the statute. As an initial matter, respondent should be presumed to know the law. (People v. Hagedorn (2005) 127 Cal.App.4th 734, 748 [25 Cal. Rptr. 3d 879].) In any event, even applying the Supreme Court’s analysis in the cases discussed above, the statutory admonishment of the consequences of refusing to submit to testing under section 23612 should not be a constitutional requirement under the Fourth Amendment.

In fact, the California courts have held that a similar statutorily-required admonition is not constitutionally required. …