{"id":36872,"date":"2019-03-21T07:41:21","date_gmt":"2019-03-21T12:41:21","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=36872"},"modified":"2019-03-21T08:29:15","modified_gmt":"2019-03-21T13:29:15","slug":"cal-app-div-driving-being-told-he-had-to-submit-to-a-bac-test-wasnt-consent-at-all","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=36872","title":{"rendered":"Cal. App. Div.: Driver being told he had to submit to a BAC test wasn&#8217;t consent at all"},"content":{"rendered":"<p>The officer here told defendant that he had to submit to a blood test, so there was no voluntary consent. \u201cHere, the officer violated section 655.1 by telling defendant he had to choose instead of<br \/>\nrequesting that he submit to a blood or a breath test.  At the time the defendant was told he had to<br \/>\nsubmit to a test, he had been detained for field sobriety tests, taken from his boat, transported to a<br \/>\npatrol vessel, and placed under arrest. These circumstances favor a finding of involuntariness.\u201d People v. Gutierrez<a href=\"http:\/\/www.courts.ca.gov\/opinions\/documents\/JAD19-02.PDF\">People v. Gutierrez<\/a>People v. Gutierrez, CR M 17-6615 (App. Div. Yolo Co. Mar. 20, 2019).<\/p>\n<p>Defendant\u2019s 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. <a href=\"http:\/\/nycourts.gov\/reporter\/3dseries\/2019\/2019_01973.htm\">People v. Fitch<\/a>, 2019 NY Slip Op 01973, 2019 N.Y. App. Div. LEXIS 1971 (4th Dept. Mar. 15, 2019).*<\/p>\n","protected":false},"excerpt":{"rendered":"<p>The officer here told defendant that he had to submit to a blood test, so there was no voluntary consent. \u201cHere, the officer violated section 655.1 by telling defendant he had to choose instead of requesting that he submit to &hellip; <a class=\"more-link\" href=\"http:\/\/fourthamendment.com\/?p=36872\">Continue reading <span class=\"meta-nav\">&rarr;<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[24,55,21],"tags":[],"class_list":["post-36872","post","type-post","status-publish","format-standard","hentry","category-consent","category-drug-testing","category-franks-doctrine"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/36872","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=36872"}],"version-history":[{"count":2,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/36872\/revisions"}],"predecessor-version":[{"id":36874,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/36872\/revisions\/36874"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=36872"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=36872"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=36872"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}