Cal. App. Div.: Driver being told he had to submit to a BAC test wasn’t consent at all

The officer here told defendant that he had to submit to a blood test, so there was no voluntary consent. “Here, the officer violated section 655.1 by telling defendant he had to choose instead of
requesting that he submit to a blood or a breath test. At the time the defendant was told he had to
submit to a test, he had been detained for field sobriety tests, taken from his boat, transported to a
patrol vessel, and placed under arrest. These circumstances favor a finding of involuntariness.” People v. GutierrezPeople v. GutierrezPeople v. Gutierrez, CR M 17-6615 (App. Div. Yolo Co. Mar. 20, 2019).

Defendant’s Franks claim on appeal was waived by failure to present it to the trial court. The credibility determination of the trial court on the suppression issue is binding on this court. People v. Fitch, 2019 NY Slip Op 01973, 2019 N.Y. App. Div. LEXIS 1971 (4th Dept. Mar. 15, 2019).*

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