ARRESTED FOR DUI - CHOICE OF BREATH OR BLOOD
If someone is lawfully arrested for driving under the influence of alcohol in California, the law requires them to submit to a chemical breath or blood test in order to determine their blood alcohol concentration. However, it is within someone's rights to refuse to comply with an officer's demand to submit to a chemical test, but it will carry significant and draconian consequences with the DMV (read more about DMV consequences of refusal here) and court.
EVIDENCE OF DUI REFUSAL AT TRIAL
Whenever a person refuses a chemical test, evidence of that refusal is brought in front of the jury and the district attorney argues that the person refused because they knew they were drunk and didn't want to give the government any evidence of their intoxication. This is called "consciousness of guilt" evidence. It is horse crap and shouldn't be allowed under the current law with respect to warrantless demands for chemical blood tests.
DID THE OFFICER HAVE A WARRANT?
However, more often than not, when an officer requests that a person submit to a chemical blood test, the officer does not obtain a search warrant before making the demand. (Yes, taking a person's blood is a search - and a very intrusive search for that matter.) So, if the officer's request does not have the legal backing of a warrant, shouldn't that person have the right to refuse that search under the Fourth Amendment? Wouldn't it violate the Fourth Amendment to admit that "consciousness of guilt" evidence into trial? Let's look at a hypothetical.
RIGHT TO REFUSE WARRANTLESS SEARCHES
Basic civics tells us that we have the right to refuse warrantless searches. For instance, an officer knocks on your door and says, "Hey, let me in I want to search your house." Any astute citizen would ask, "Where is your warrant?" If the officer replied, "I don't have a warrant," that smart citizen would say, "Pack sand, officer. Go get a warrant."
That is your right as an American. Now, let's assume the officer goes and gets a warrant. Comes back, searches your home, and finds drugs. You go to a jury trial. Would it be proper to admit into evidence that you refused the initial warrantless search and for the district attorney to argue you refused the search because you were dealing drugs? No! It would not be proper! The court would never let that happen, because it would penalize you for invoking your Fourth Amendment right to be free from warrantless searches and seizures.
See, what good would the Fourth Amendment be if we could be punished or have it used against us in trial if we invoked it? It wouldn't be any good at all! That's because we would be less likely to invoke our right under the Fourth Amendment if it was just going to be used against us - to argue to the jury that we knew we were guilty and invoked our constitutional rights.
EVIDENCE OF WARRANTLESS BLOOD TEST REFUSAL AT DUI TRIALS
Now, back to the DUI scenario. In DUI cases, if someone refuses a warrantless blood test, the courts routinely permit evidence of the refusal and permit the district attorney to argue that the person refused the test because they knew they were drunk.
Why? Well, let's start off with examining the old law. It used to be that warrants weren't needed for blood tests in DUI cases, because the court permitted warrantless blood draws due to the quickness with which alcohol dissipates from the human body. This created a so-called "emergency," that justified foregoing the warrant application process. So, if no warrant is needed, a person has no Fourth Amendment right to refuse a warrantless search, and the evidence of the refusal can come in.
However, the United States Supreme Court rethought that recently. Now, the law says that the mere fact that alcohol dissipates from a person's system is not enough to constitute an emergency sufficient to forego the warrant process. There needs to be some other extenuating circumstances, like an accident, the passage of time, hospital trips, lack of sufficient amount of officers, etc.
So, now, in a routine DUI case, whenever an officer wants to perform a blood draw, they need a warrant. So, if an officer demands a chemical blood test without a warrant, YOU HAVE THE SAME RIGHT TO REFUSE THE SEARCH OF YOUR BODY AND BLOOD AS YOU DO THE ENTRY TO YOUR HOME, AND YOU CANNOT BE PUNISHED FOR INVOKING THAT RIGHT BY HAVING A JURY HEAR EVIDENCE OF THE REFUSAL AND THE DISTRICT ATTORNEY ARGUE CONSCIOUSNESS OF GUILT!
You will face serious DMV consequences by refusing. Like an automatic 1 year license suspension. However, evidence of a warrantless chemical blood test refusal should never come in to evidence at any trial, unless perhaps an exception to the warrant requirement applies.