{"id":58229,"date":"2024-06-30T07:37:44","date_gmt":"2024-06-30T12:37:44","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=58229"},"modified":"2024-06-30T07:37:44","modified_gmt":"2024-06-30T12:37:44","slug":"cal-1-california-juries-may-be-instructed-on-refusal-of-consent-to-blood-draw-and-insisting-on-a-sw-as-evidence-of-guilt","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=58229","title":{"rendered":"Cal.1: California juries may be instructed on refusal of consent to blood draw and insisting on a SW as evidence of guilt"},"content":{"rendered":"\n

\u201cThe question presented here is this: If, following a valid arrest for such an offense, a motorist refuses to cooperate in the taking of a blood test unless a warrant is first obtained, may the jury at the motorist’s ensuing DUI trial draw an adverse inference of consciousness of guilt based on that refusal? [\u00b6] Our answer is yes.\u201d \u201cAt the outset, it is important to be clear about exactly what Bolourchi is now arguing. In the trial court, he took the position that his lack of cooperation in submitting to a blood test, factually, was not a refusal to test because he ultimately allowed his blood to be taken. But that position is unsustainable. It is well established that, to comply with the consent law, a \u2018\u201cdriver should clearly and unambiguously manifest the consent required by the law. Consent which is not clear and unambiguous may be deemed a refusal.\u201d\u2019 \u201cWhen the Mitchell and McNeely pluralities and the Birchfield majority opinion are read together, five current justices on the United States Supreme Court have joined an opinion acknowledging that\u2014short of criminal conviction\u2014states may use implied consent laws to impose a variety of adverse consequences on DUI arrestees who refuse blood testing.\u201d People v. Bolourchi<\/a>, 2024 Cal. App. LEXIS 420 (1st Dist. June 28, 2024).<\/p>\n\n\n\n

The district court\u2019s finding consent was voluntary was supported by the record and not clearly erroneous. Defendant was 40 years old and educated, and stepped back to permit entry when the police knocked at the time. The officer\u2019s comment about a gun inside being a danger to children didn\u2019t make it involuntary. United States v. Han, 2024 U.S. App. LEXIS 15767 (7th Cir. June 28, 2024).*<\/p>\n","protected":false},"excerpt":{"rendered":"

\u201cThe question presented here is this: If, following a valid arrest for such an offense, a motorist refuses to cooperate in the taking of a blood test unless a warrant is first obtained, may the jury at the motorist’s ensuing … Continue reading →<\/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":[24,55,114],"tags":[],"class_list":["post-58229","post","type-post","status-publish","format-standard","hentry","category-consent","category-drug-testing","category-privileges"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/58229","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=58229"}],"version-history":[{"count":1,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/58229\/revisions"}],"predecessor-version":[{"id":58230,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/58229\/revisions\/58230"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=58229"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=58229"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=58229"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}