The opinion
Filed 6/28/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A167289
v. (Marin County
HAADI BOLOURCHI, Super. Ct. No. SC207297A)
Defendant and Appellant.
Under Vehicle Code1 section 23612, subdivision (a)(1)(B), “A person
who drives a motor vehicle is deemed to have given his or her consent to
chemical testing of his or her blood for the purpose of determining the drug
content of his or her blood, if lawfully arrested for” driving while under the
influence of a drug in violation of section 23152, subdivision (f).2 The
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?
Our answer is yes. In this case, a jury convicted defendant Haadi
Bolourchi of a DUI offense in violation of section 23152, subdivision (f), and
1 Undesignated statutory references are to the Vehicle Code.
2 We will sometimes use “DUI” to refer to driving under the influence of
alcohol, a drug, or a combination.
1
bribing an executive officer. The trial court suspended imposition of
sentence, placed Bolourchi on three years’ probation, and ordered a jail term
of 180 days. On appeal, Bolourchi contends the DUI conviction should be
reversed. He argues the court erred by instructing the jury with CALCRIM
No. 2130, an instruction that states a defendant’s refusal to submit to a
chemical test as required by California’s implied consent statute (§ 23612)
may show consciousness of guilt.
Seeing no instructional error, we affirm.3
I. BACKGROUND
A. The Charges
An information charged Bolourchi with driving under the influence of a
drug with priors (§§ 23152, subd. (f), 23550, subd. (a); count 1) and bribing an
executive officer (Pen. Code, § 67; count 2). Among the sentencing
enhancement allegations for count 1 was a charge that Bolourchi willfully
refused a peace officer’s request to submit to a chemical test and willfully
failed to complete that test. (§§ 23612, 23577, 23578.)
B. The Evidence Presented at Trial
Officer Kevin Finerty testified as follows.
In the early morning hours of September 22, 2018, while on patrol in
San Rafael, Officer Finerty noticed a black Dodge Challenger with tinted
front windows, obscuring the driver. Loud noises were emitting from the
car’s rear exhaust. Both conditions violate the Vehicle Code. After the car
rolled slowly over the crosswalk and into the middle of an intersection
against a red light, Officer Finerty pulled behind it and activated his
emergency lights. When the car failed to stop, he activated his siren.
3 Because we find no instructional error, we need not address the
parties’ arguments as to whether the claimed error was prejudicial.
2
With Officer Finerty trailing close behind, the car proceeded 500 feet
before pulling into the parking lot of a 7-Eleven store. The driver, Haadi
Bolourchi, got out and began walking into the store, seemingly oblivious to
the fact a patrol car with lights and siren activated had been behind him
before he stopped. Officer Finerty directed Bolourchi to get back into his car,
which Bolourchi refused to do, stating he did not consent to a search of the
car. The officer found that odd, since he had not asked permission to search
anything.
During the ensuing interactions between Officer Finerty and Bolourchi,
Bolourchi exhibited a number of suspicious traits and behaviors suggesting
paranoia and other indications of intoxication. His eyes were red and watery.
His speaking tone was low and his speech was slow. And he said he was
unaware Officer Finerty had pulled behind him, despite the lights and sirens
immediately behind him before he pulled into the 7-Eleven lot.
Bolourchi gave a confused response to a simple question about where
he was driving from and where he was going. He was unsteady on his feet.
He failed to comply with multiple directions to sit on the ground, and had to
be physically guided into a sitting position. He repeatedly asked the same
questions about why he had been stopped even after being told he was
suspected of Vehicle Code violations.
Faced with these various indications of intoxication, Officer Finerty
conducted several field sobriety tests, including the horizontal gaze
nystagmus test, the walk and turn test, the one-leg stand test, and the finger
to nose test. Bolourchi’s poor performance on a number of these tests
3
suggested that he was under the influence of drugs or alcohol, so Officer
Finerty administered a preliminary alcohol screening (PAS) test.4
When the PAS results showed no evidence of alcohol use, Officer
Finerty began to focus on possible drug intoxication. Bolourchi admitted to
smoking cannabis the day before, and indicated he normally kept his
cannabis in the trunk of his car. Officer Finerty replied that he was
concerned whether Bolourchi had been driving while under the influence of
cannabis, not where he normally stored it. “ ‘Yeah,’ ” said Bolourchi,
seemingly in agreement with the officer’s stated concern.
At that point, Officer Finerty arrested Bolourchi and placed him in the
back of his patrol car. The officer then conducted an inventory search of
Bolourchi’s car. There were multiple packets of Swisher Sweets tobacco
cigars in the car. According to Officer Finerty, people often replace the
tobacco in these cigars with cannabis and smoke them. Also in the car was
an empty pill container for the prescription drug Alprazolam. No cannabis
was found on Bolourchi or in his car.
After driving Bolourchi to the police station, Officer Finerty told
Bolourchi he was going to conduct a drug recognition evaluation (DRE).
Bolourchi was still confused as to why he was there. The officer told
Bolourchi that he believed he was under the influence of drugs, either
prescription or nonprescription. Although Bolourchi adamantly denied that
he was under the influence of prescription drugs, he did not deny driving
under the influence of cannabis.
4 “A preliminary alcohol screening test that indicates the presence or
concentration of alcohol based on a breath sample in order to establish
reasonable cause to believe the person was driving a vehicle in violation of
Section 23140, 23152, or 23153 is a field sobriety test and may be used by an
officer as a further investigative tool.” (§ 23612, subd. (h).)
4
In conducting the DRE, Officer Finerty checked Bolourchi’s vital signs.
Bolourchi’s blood pressure and body temperature were normal. His pulse
was elevated, which is consistent with cannabis use. Bolourchi’s pupils were
normal in varying light. Officer Finerty testified it is possible for an
individual to be under the influence of marijuana and still have normal blood
pressure, body temperature, and pupil size.
Officer Finerty also administered the Modified Romberg Test to test
Bolourchi’s internal clock. During an elapsed period of 35 seconds, Bolourchi
estimated 30 seconds had passed. The officer observed that the condition of
Bolourchi’s tongue was consistent with dry mouth and cannabis use and with
smoking a cigar or a glass pipe. Bolourchi told Officer Finerty that on
September 21, he had smoked approximately one gram of cannabis at 8:00
a.m. and again at 10:00 a.m., and he had taken some Alprazolam at 3:00 p.m.
Based on Bolourchi’s physical condition, behavior, and performance on
the field sobriety tests, Officer Finerty formed the opinion that Bolourchi was
under the influence of cannabis and asked Bolourchi if he would consent to a
blood test. Bolourchi agreed to have a blood sample taken but wanted it done
at the jail and not at the police department.
Officer Finerty then drove Bolourchi to the county jail. But at the jail,
Bolourchi stated that he did not want to have his blood drawn and wanted
the officer to get a warrant for the blood test. Bolourchi also made
statements to the effect that he wanted the officer to “work for [his] money.”
At this point, Officer Finerty drove Bolourchi back to the police department
to obtain a warrant.
During the drive back to the police department, Bolourchi made a
statement to the effect of “ ‘You can’t get any tips?’ ” The officer was confused
by Bolourchi’s remark. Bolourchi then told the officer that he would pay him
5
$1,000 if he let him go. When Officer Finerty asked Bolourchi to confirm
what he was saying, Bolourchi repeated that he would give the officer $1,000
if he let him go.
Bolourchi explained that the tow of his vehicle was only going to be
$100 and that he would be paying the officer 10 times that amount. Officer
Finerty did not think Bolourchi was joking, because “[h]e wasn’t laughing.
He and I weren’t laughing back and forth or anything.” Although Bolourchi
did not have cash on his person, the officer believed that he was making a
serious attempt to bribe him with $1,000.
Officer Finerty obtained a warrant for the blood test. The blood draw
was performed at 5:57 a.m. The sample was sent to the Department of
Justice for testing. Criminalist Cathralynn Cook testified about the results
of that testing. Cook testified as an expert on the procedures and operations
of the Department of Justice laboratory, blood analysis for the presence of
drugs, and the effect of drugs on the human body and a person’s ability to
operate a vehicle.
According to Cook, Alprazolam is a central nervous system depressant
and can cause impairment by slowing that system down. Common symptoms
include lowered heart rate, pulse rate, and body temperature. It can also
cause sleepiness, confusion, muscle relaxation, a slowed perception of time,
and difficulties with spatial awareness. Both Alprazolam and THC (the
active ingredient in marijuana) can affect a person’s ability to do more than
one task at a time, disrupting the divided-attention processing in the brain.
Driving is a complex divided-attention task. The test of Bolourchi’s blood
sample showed “[t]he presence of Alprazolam,” and “2.2-nanograms per
milliliter of Delta 9-THC as well as Hydroxy-THC and Carboxy-THC.” Cook
was confident that the test results were reliable and trustworthy.
6
Cook described the additive effects when a person takes both THC and
Alprazolam. Both substances can cause physical coordination issues, lowered
heart rate, lowered blood pressure, sleepiness, relaxation, and confusion. The
symptoms may be more pronounced if a person is using both substances. A
person driving under the influence of THC may have difficulty modulating
speed in relation to other objects, difficulty with lane positioning, weaving,
not turning appropriately, and slowed reaction time. A person using
Alprazolam may drive more slowly and have weaving and coordination
issues.
The prosecutor posed a hypothetical involving a person whose
performance on field sobriety tests paralleled Bolourchi’s performance. Cook
opined that the person was too impaired to drive safely. The prosecutor later
added facts to the hypothetical paralleling Bolourchi’s driving behavior, his
actions prior to being contacted by Officer Finerty, his admissions of having
taken Alprazolam and smoked marijuana, and the results of the DRE. Cook
again opined the person was too impaired to drive safely.
On cross-examination, Cook confirmed that for the Alprazolam detected
in Bolourchi’s system, no concentration was determined. But she stated that
her opinion about impairment was based on the totality of the circumstances
and not solely on the level of the drug in the system. Cook also stated that
the level of a drug in a person’s system does not decrease consistently over
time like alcohol. Cook agreed that a person who regularly used marijuana
or Alprazolam might not be as impaired as a new user, but stated she would
expect the tolerant user to perform normally on field sobriety tests, have an
ordinary driving pattern, and have no symptoms of impairment.
Bolourchi did not testify, but he did call his own expert, Dr. Eugene
Schoenfeld. Schoenfeld pointed out that, for Alprazolam, the blood test
7
results showed “detected,” with no measured level shown, and that the
detected level of THC simply indicated Bolourchi had smoked marijuana
sometime in the past. According to Dr. Schoenfeld, these results were
consistent with Bolourchi’s statements to Officer Finerty that he took
Alprazolam and consumed marijuana the previous day, not that he was
impaired when Officer Finerty encountered him.
Dr. Schoenfeld saw nothing in Officer Finerty’s reported observations of
Bolourchi or in the testing results to indicate impairment. He did not
specifically address Bolourchi’s bad driving or his evident confusion and
disorientation in the 7-Eleven parking lot. As for Bolourchi’s poor
performance on the field sobriety tests, Dr. Schoenfeld said that may be
explained by simple nervousness, not impairment.
In closing argument, defense counsel denied that Bolourchi had any
corrupt intent in offering money to Officer Finerty and said his statements
about that, if true, were nothing more than “circumstantial evidence that
Haadi Bolourchi is a jackass.”
C. The CALCRIM No. 2130 Instruction and Dismissal of the Section
23577 Allegation
Prior to trial, the prosecutor moved in limine to give a proposed jury
instruction under CALCRIM No. 2130 that read as follows:
“The law requires that any driver who has been lawfully arrested
submit to a chemical test at the request of a peace officer who has reasonable
cause to believe that the person arrested was driving under the influence. [¶]
If the defendant refused to submit to such a test after a peace officer asked
him to do so and explained the test’s nature to the defendant, then the
defendant’s conduct may show that he was aware of his guilt. If you conclude
that the defendant refused to submit to such a test, it is up to you to decide
8
the meaning and importance of the refusal. However, evidence that the
defendant refused to submit to a chemical test cannot prove guilt by itself.”
Defense counsel objected to this instruction, arguing there was no
“refusal” because “[t]hey have a blood test.” The prosecutor argued Bolourchi
was “stringing it out”—first by insisting that the test occur at the jail and
then declining to test without a warrant—which “could be indicative of a
guilty state of mind.” Noting Bolourchi did not submit to the test without a
warrant, the court granted the prosecutor’s motion and stated it would give
the instruction.
In a mid-trial conference to discuss jury instructions, defense counsel
stated he did not agree with the inclusion of CALCRIM No. 2130. Counsel
stated Bolourchi “did, to his knowledge and ability, submit. He gave a
[breathalyzer] test. He went back and forth and eventually did submit to a
blood test.” The prosecutor responded that Bolourchi had refused and it was
necessary to get a warrant. The court concluded that it would give the
instruction and the parties could make their arguments to the jury. Defense
counsel did not object to the wording of the instruction or request any
modification to the instruction.
In a later discussion just before the court instructed the jury, defense
counsel argued Bolourchi had not received a proper explanation about the
blood test, so his conduct did not amount to a refusal that would indicate
consciousness of guilt. After hearing argument, the court stated it was
satisfied that the “nature of the test was explained,” and it would give the
instruction, with counsel free to make their respective arguments to the jury.
The prosecutor relied on the CALCRIM No. 2130 instruction in closing
argument as one of a number of factors the jury could use to find Bolourchi
was driving while under the influence of a drug. “The defendant didn’t want
9
to take [a blood] test because he knew that it would show he was intoxicated.
You can use that as a factor in deciding whether or not the defendant was
intoxicated. He refused to take the test. [You c]an use that as evidence of
the fact that he knew he was intoxicated.”
During trial, the court granted the prosecution’s motion to dismiss the
enhancement allegation under section 23577 that Bolourchi refused a
chemical test.
D. Guilt Verdict, Sentence and Appeal
The jury found Bolourchi guilty on both counts 1 and 2 and at a
subsequent bifurcated trial the court found sentencing allegations that
Bolourchi suffered three prior DUI convictions to be true. At sentencing, the
court suspended imposition of sentence, placed Bolourchi on three years’
probation, and ordered that he serve 180 days in county jail.
Bolourchi timely appealed.
II. DISCUSSION
At 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
“ ‘driver should clearly and unambiguously manifest the consent required by
the law. Consent which is not clear and unambiguous may be deemed a
refusal.’ ” (Garcia v. Department of Motor Vehicles (2010) 185 Cal.App.4th
73, 82.)
On appeal, Bolourchi continues to claim that consent is a question of
fact, but the focus of his argument has shifted. He now argues that, legally,
his lack of cooperation in a blood draw cannot amount to a refusal under the
implied consent law, at least not a refusal for which any adverse
10
consequences may attach under CALCRIM No. 2130. Specifically, Bolourchi
contends he had a constitutional right under Missouri v. McNeely (2013)
569 U.S. 141 (McNeely) to demand that police obtain a warrant before he
submitted to a blood draw, so his assertion of that right should not be deemed
a refusal to test.
As an initial matter, the Attorney General argues Bolourchi forfeited
this legal attack on the CALCRIM No. 2130 instruction by failing to object to
it on precisely the same grounds he now urges on appeal. In the trial court,
Bolourchi contended there was no refusal because he eventually submitted to
a blood draw, while here he argues there can be no refusal when an arrestee
claims he has a Fourth Amendment right to be free from a coerced blood
draw absent a warrant.
The issue Bolourchi raises is a matter of first impression in California.
Without determining whether his objection below was sufficient to avoid
forfeiture, we will review the merits of his claim and address whether the
instruction affected his substantial rights. (Pen. Code, § 1259; People v.
Jimenez (2016) 246 Cal.App.4th 726, 730.) For the reasons discussed below,
we conclude the court did not err by giving the challenged instruction.
A. The Implied Consent Law
The implied consent law states that a driver of a motor vehicle is
“deemed to have given his or her consent” to blood or breath testing for
alcohol, and to blood testing for drugs, upon a lawful arrest for DUI.
(§ 23612, subd. (a)(1)(A) & (B).) Specifically, when a person is lawfully
arrested for driving under the influence of alcohol, the arresting officer is to
give the person the choice of whether to take a blood test or a breath test.
(§ 23612, subd. (a)(2)(A).) If the arrest is for driving under the influence of a
drug or the combined influence of alcohol and a drug, the officer initially is to
offer the person the choice of a blood or breath test (id., subd. (a)(2)(B)), but a
11
person who chooses a breath test may also be asked to take a blood test “if
the officer has reasonable cause to believe that the person was driving under
the influence of a drug or the combined influence of an alcoholic beverage and
a drug and if the officer has reasonable cause to believe that a blood test will
reveal evidence of the person being under the influence” (id., subd. (a)(2)(C)).5
In addition to blood and breath testing, a driver is in some circumstances
deemed to have consented to urine testing. (Id., subds. (a)(1)(B), (a)(2)(C),
(d)(2).)
An arresting officer must advise the driver that failure to submit to the
required “breath or urine testing” will result in a fine and mandatory
imprisonment if the person is convicted of DUI (§ 23612, subd. (a)(1)(D)),6 and
that failure to submit to the required “breath, blood, or urine tests” will result
5 Here, as noted, after the PAS test result showed Bolourchi had no
alcohol in his blood, Officer Finerty suspected he had been driving while
under the influence of a drug. After the officer arrested him, the record only
shows the officer asked him to take a blood test, even though arguably he
should have offered the alternative of a post-arrest breath test (§ 23612,
subd. (a)(2)(B)) before asking for a blood test if Bolourchi chose breath
testing. (Id., subd. (a)(2)(C) [“A person who chooses to submit to a breath test
may also be requested to submit to a blood test if the officer has reasonable
cause to believe that the person was driving under the influence of a drug . . .
and if the officer has reasonable cause to believe that a blood test will reveal
evidence of the person being under the influence.”].) On appeal, Bolourchi
does not argue that this possibly skipped step provides a basis for reversal;
he challenges only the court’s instruction about his refusal when the officer
asked him to take the blood test.
6 Following the United States Supreme Court’s decision in Birchfield v.
North Dakota (2016) 579 U.S. 438 (Birchfield) (a case we discuss below), the
Legislature amended section 23612 and related statutes in 2018 to eliminate
criminal penalties for a refusal to submit to a blood test. (Assem. Bill
No. 2717 (2017–2018 Reg. Sess.) (Assem. Bill No. 2717), Stats. 2018, ch. 177,
§§ 1–3; see §§ 23577–23578.)
12
in the administrative suspension or revocation of driving privileges (ibid.). In
addition, the officer must advise the person “that, in the event of refusal to
submit to a test or tests, the refusal may be used against him or her in a
court of law.” (Id., subd. (a)(4); see People v. Alvarez (2023) 98 Cal.App.5th
531, 547 (Alvarez) [“In a subsequent prosecution for driving under the
influence, the court may . . . admit into evidence a driver’s refusal to submit
to such a test to show consciousness of guilt.”]; CALCRIM No. 2130.)
B. Fourth Amendment Limits on Blood Tests
CALCRIM No. 2130—the instruction challenged here—states a
defendant’s refusal to submit to a test required under the implied consent
law “may show” the defendant “was aware of [his] guilt.” As noted above,
Bolourchi contends the use of this instruction was improper because he had a
constitutional right under McNeely, supra, 569 U.S. 141 to demand that
police obtain a warrant before he submitted to a blood draw. To evaluate this
contention, we begin with a background discussion of a series of Fourth
Amendment cases from the United States Supreme Court that, together,
enunciate the applicable law.
We start in the mid-1960s with Schmerber v. California (1966) 384 U.S.
757 (Schmerber). The case involved a forced blood draw from a DUI arrestee
who lay hospitalized following an auto accident. (Id. at p. 758.) In light of
delay caused by the need to investigate the accident, the police did not have
time to procure a warrant and risked losing an accurate blood sample due to
the gradual metabolization of any alcohol in the defendant’s blood. (Id. at
pp. 770–771.) The high court recognized the dignity and privacy interests at
stake with any forced intrusion beyond the body’s surface, but affirmed the
resulting conviction on the ground the arresting officer “might reasonably
have believed that he was confronted with an emergency, in which the delay
13
necessary to obtain a warrant, under the circumstances, threatened ‘the
destruction of evidence.’ ” (Id. at p. 770.)
There the law of this state stood for decades, with California courts
uniformly holding the Fourth Amendment permits unconsented, warrantless
blood draws in DUI investigations under the exigent circumstances exception
recognized in Schmerber. (See People v. Harris (2015) 234 Cal.App.4th 671,
702.) But McNeely, decided in 2013, was a gamechanger. There, the high
court held that the natural metabolization of alcohol in the bloodstream does
not establish “a per se exigency” justifying an exception to the Fourth
Amendment’s warrant requirement in all drunk-driving cases. (McNeely,
supra, 569 U.S. at p. 145.) Instead, the court held, “exigency in this context
must be determined case by case based on the totality of the circumstances.”
(Ibid.)
McNeely is just as important for what it does decide as it is for what it
does not decide. Exigency is only one of several recognized exceptions to the
Fourth Amendment warrant requirement, and McNeely addresses only one of
them—the exigency exception for emergency circumstances. (McNeely,
supra, 569 U.S. at pp. 148–149.) In addition, while Justice Sotomayor’s
opinion for the five justice McNeely majority rejects the idea of per se
exigency, she failed to garner a fifth vote for section III of the opinion
discussing an issue relevant to this case—the power of the states to use
implied consent laws to enforce their DUI laws consonant with the Fourth
Amendment.
In Section III, the McNeely plurality states: “States have a broad range
of legal tools to enforce their drunk-driving laws and to secure BAC evidence
without undertaking warrantless nonconsensual blood draws. For example,
all 50 States have adopted implied consent laws that require motorists, as a
14
condition of operating a motor vehicle within the State, to consent to BAC
testing if they are arrested or otherwise detained on suspicion of a drunk-
driving offense. [Citation.] Such laws impose significant consequences when
a motorist withdraws consent; typically the motorist’s driver’s license is
immediately suspended or revoked, and most States allow the motorist’s
refusal to take a BAC test to be used as evidence against him in a subsequent
criminal prosecution.”7 (McNeely, supra, 569 U.S. at pp. 160–161 (plur. opn.
of Sotomayor, J.).)
Three years after McNeely clarified Schmerber’s application of the
exigent circumstances exception for warrantless searches in DUI cases, the
Birchfield court added another new element to Fourth Amendment law
governing those searches. Some of the other exceptions to the warrant
requirement, unlike the exigent circumstances exception addressed in
Schmerber and McNeely, apply categorically rather than on a totality of the
circumstances, case-by-case basis. Birchfield not only involved one of these
categorical exceptions—the search-incident-to-arrest exception—but directly
addressed implied consent laws as well.
The main issue in Birchfield was whether the Fourth Amendment
limits the operation of state laws that impose penalties on drivers who refuse
to undergo chemical testing required by implied consent laws. (Birchfield,
7 Both the California Supreme Court and the United States Supreme
Court have rejected Fifth Amendment challenges to the admission of
evidence or the giving of jury instructions permitting juries to draw adverse
inferences against DUI defendants for their refusal to consent to blood-
alcohol tests. (See People v. Sudduth (1966) 65 Cal.2d 543, 546–547
(Sudduth); South Dakota v. Neville (1983) 459 U.S. 553, 554, 564 (Neville).)
Although we have no Fifth Amendment challenge in this case, we take these
high court precedents as highly instructive in piecing together the applicable
Fourth Amendment principles at issue here based on McNeely and Birchfield.
15
supra, 579 U.S. at pp. 443–444.) While the “typical penalty for
noncompliance” “[i]n the past” was “suspension or revocation of the motorist’s
license,” the North Dakota and Minnesota laws at issue in Birchfield went
“beyond that and [made] it a crime for a motorist to refuse to be tested after
being lawfully arrested for driving while impaired.” (Id. at p. 444; see id. at
pp. 449–450.) The court considered “whether such laws violate the Fourth
Amendment’s prohibition against unreasonable searches.” (Id. at p. 444.)
Before the court in Birchfield were three defendants in three separate
cases. In one, Birchfield was convicted of a crime for refusing to take a blood
test (Birchfield, supra, 579 U.S. at pp. 454, 451); in another, Bernard was
convicted of criminal refusal to take a breath test (id. at pp. 452–453); and in
the third, Beylund submitted to a blood test, but when his driver’s license
was subsequently suspended in an administrative hearing, he argued his
consent to the blood test was coerced because the arresting officer had
warned him that refusing to consent would itself be a crime (id. at pp. 453–
454). The Supreme Court granted certiorari in all three “to decide whether
motorists lawfully arrested for drunk driving may be convicted of a crime or
otherwise penalized for refusing to take a warrantless test measuring the
alcohol in their bloodstream.” (Id. at p. 454.)
After concluding that the search-incident-to-arrest doctrine does not
justify the warrantless taking of a blood sample, the Birchfield court rejected
the states’ alternative argument that a DUI arrestee may be “deemed to have
consented to submit to a blood test” in the face of threatened criminal
penalties. (Birchfield, supra, 579 U.S. at p. 477.) “It is well established that
a search is reasonable when the subject consents [citation], and that
sometimes consent to a search need not be express but may be fairly inferred
from context.” (Id. at p. 476.) “Our prior opinions,” said the court, “have
16
referred approvingly to the general concept of implied-consent laws that
impose civil penalties and evidentiary consequences on motorists who refuse
to comply. See, e.g., McNeely, supra, at 160–161 (plurality opinion); Neville,
supra, at 560. Petitioners do not question the constitutionality of those laws,
and nothing we say here should be read to cast doubt on them. [¶] It is
another matter, however, for a State not only to insist upon an intrusive
blood test, but also to impose criminal penalties on the refusal to submit to
such a test. There must be a limit to the consequences to which motorists
may be deemed to have consented by virtue of a decision to drive on public
roads.” (Birchfield, at pp. 476–477.)
The Supreme Court then applied these legal conclusions to the three
cases before it. (Birchfield, supra, 579 U.S. at pp. 477–478.) The court held
Birchfield could not be forced to submit to a warrantless blood test incident to
his arrest. (Ibid.) Because there were no exigent circumstances or other
bases to justify a warrantless blood test, the court held Birchfield was
threatened with an unlawful search and reversed his conviction for refusing
to submit to a blood test. (Id. at p. 478.) In contrast, a warrantless breath
test was a permissible search incident to Bernard’s arrest. “[T]he Fourth
Amendment did not require officers to obtain a warrant prior to demanding
the [breath] test, and Bernard had no right to refuse it.” (Ibid.) Lastly, the
court vacated Beylund’s license suspension because the North Dakota
Supreme Court had erroneously concluded the state could compel both blood
tests and breath tests incident to arrest. (Ibid.) The high court remanded
the case for a determination of whether Beylund’s consent to the blood test
was freely and voluntarily given in light of the inaccuracy of the officer’s
advisement. (Ibid. & fn. 9.)
17
The most recent United States Supreme Court case involving implied
consent laws, Mitchell v. Wisconsin (2019) 588 U.S. 840 (Mitchell), applies
Birchfield and McNeely to a category of cases involving unconscious DUI
arrestees. The holding in Mitchell—that a warrantless blood draw generally
is permissible where the arrestee’s condition requires that he be taken to a
hospital before the police have an opportunity to obtain a standard
evidentiary breath test (Mitchell, at p. 857 (plur. opn. of Alito, J.))—is less
pertinent here than its background statement of applicable constitutional
principles. Echoing Birchfield and the McNeely plurality, Mitchell
acknowledges the constitutional validity of imposing adverse consequences
for blood testing refusals under implied consent laws. (Mitchell, at p. 847
(plur. opn. of Alito, J.).)
Speaking for a plurality of four justices in Mitchell, Justice Alito
summarized the state of the law as follows: “We have held that forcing
drunk-driving suspects to undergo a blood test does not violate their
constitutional right against self-incrimination. [Citation.] Nor does using
their refusal against them in court. [Citation.] And punishing that refusal
with automatic license revocation does not violate drivers’ due process rights
if they have been arrested upon probable cause, [citation]; on the contrary,
this kind of summary penalty is ‘unquestionably legitimate.’ ” (Mitchell,
supra, 588 U.S. at p. 847 (plur. opn. of Alito, J.).) When 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—short of criminal conviction—states may use
implied consent laws to impose a variety of adverse consequences on DUI
arrestees who refuse blood testing.
18
C. The Trial Court Did Not Err by Instructing with CALCRIM
No. 2130 That Jurors Could Consider Bolourchi’s Refusal as
Evidence of Consciousness of Guilt
Following McNeely and Birchfield, a warrantless blood test incident to
a DUI arrest may not be justified under the Fourth Amendment based on the
implied consent law alone. (Alvarez, supra, 98 Cal.App.5th at pp. 548–549
[actual consent, but not implied consent, justifies a warrantless blood draw].)
“Taken together, ‘the reasoning and analysis in Birchfield and McNeely, as
well as other Fourth Amendment precedent, suggest that blood draws may
only be performed after either obtaining a warrant, obtaining valid consent
from the defendant, or under exigent circumstances with probable cause.’ ”
(Alvarez, at p. 550.) In the present case, of course, Bolourchi’s blood was not
drawn until after the police obtained a warrant, so the Fourth Amendment
did not limit the introduction of the blood test results into evidence, and
Bolourchi makes no argument that the results were improperly admitted.
While the blood test ultimately performed here was permissible under
the Fourth Amendment, the question presented in this case is what penalties
or consequences may be imposed on Bolourchi for his refusal to submit to the
test when no warrant had yet been obtained. Bolourchi contends he had a
Fourth Amendment “right to demand a warrant before submitting to the
blood draw,” so his assertion of that right “cannot constitute a refusal under
the law and, thus, cannot be used against him as evidence of his
consciousness of guilt.” He argues: “Since the instruction [CALCRIM
No. 2130] improperly invited the jury to penalize [Bolourchi] for lawfully
asserting his constitutional right, the giving of the instruction was error.”
But as the Attorney General points out, the Birchfield court did not
hold that the Fourth Amendment prohibits all penalties or consequences for a
driver who refuses to submit to a blood test after a DUI arrest. Instead,
19
Birchfield held specifically that the imposition of criminal penalties for a
refusal to submit to a blood test is not permitted. (Birchfield, supra, 579 U.S.
at pp. 476–477; see id. at p. 444.) Applying the “reasonableness” standard
that is “always the touchstone of Fourth Amendment analysis,” the Birchfield
court held that a driver “cannot be deemed to have consented to submit to a
blood test on pain of committing a criminal offense.” (Id. at p. 477.) Before
stating this conclusion, however, the court emphasized it was not prohibiting
states from imposing other consequences—specifically, “civil penalties and
evidentiary consequences”—for a refusal to submit to a blood test. (Id. at
pp. 476–477, italics added.) The court stated its “prior opinions have referred
approvingly to the general concept of implied-consent laws that impose civil
penalties and evidentiary consequences on motorists who refuse to comply,”
and “nothing we say here should be read to cast doubt on them.” (Ibid.)
Bolourchi does not mention or address this portion of Birchfield in his
appellate briefs.
Here, Bolourchi was not punished criminally for his refusal to submit
to a warrantless blood test. Unlike the states whose laws were at issue in
Birchfield, California has never “ ‘made it a stand-alone criminal offense for a
DUI arrestee to refuse to submit to a chemical test.’ ” (Espinoza v. Shiomoto
(2017) 10 Cal.App.5th 85, 113, fn. 10 (Espinoza).) In some circumstances,
however, a refusal can result in increased criminal penalties for a driver
convicted of DUI. As the Espinoza court noted in 2017, “a motorist’s refusal
to submit to or failure to complete a chemical test, if pleaded and proven by
the prosecutor, results in increased criminal penalties if the motorist is
convicted of DUI in violation of section 23152 or 23153. (§§ 23577, 23578.)”
(Espinoza, at p. 113, fn. 10.) But in 2018, to comply with Birchfield, the
Legislature amended the relevant statutes to eliminate the increased
20
criminal penalties where a driver refuses to submit to a blood test, while
leaving them in place for a refusal to submit to a breath or urine test.
(§§ 23577, subds. (a), (c), 23578, 23612, subd. (a)(1)(D); Assem. Bill No. 2717,
Stats. 2018, ch. 177, §§ 1–3, amending §§ 23577, 23578, 23612; see Legis.
Counsel’s Dig., Assem. Bill No. 2717 [stating Birchfield “held that a motorist
cannot be punished criminally for his or her refusal to submit to a blood
test[,]” but stating that “[t]he [Birchfield] court held that administrative
penalties could be imposed for a refusal to submit to a blood test for those
purposes”].)
In this case, the information charging Bolourchi with DUI included
allegations that he refused to submit to a chemical test within the meaning of
sections 23577 and 23578. Under the versions of the relevant statutes that
were in effect when the information was filed in 2020 (i.e., after the 2018
amendments discussed above), the increased penalties authorized by
sections 23577 and 23578 already did not apply to a refusal to take a blood
test. (§§ 23577, subds. (a), (c), 23578, 23612, subd. (a)(1)(D).) But in any
event, the trial court later granted the prosecutor’s motion to dismiss the
enhancement allegations for unrelated reasons,8 and the allegations were not
8 The prosecutor requested (and the court granted) the dismissal
because the prosecutor had not introduced evidence as to whether Officer
Finerty provided certain advisements to Bolourchi about the requested test
and the implied consent law before Bolourchi refused to take the test. The
court noted those advisements are required by the standard jury instruction
governing the refusal enhancement (see CALCRIM No. 2131).
In contrast, detailed advisements are not a prerequisite to admission of
evidence of a refusal to show consciousness of guilt in a prosecution for DUI.
(People v. Municipal Court (Gonzales) (1982) 137 Cal.App.3d 114, 118; see
CALCRIM No. 2130.) And as noted, the trial court later concluded the officer
had sufficiently advised Bolourchi of “the nature of the test” to warrant
21
submitted to the jury. Thus, this case does not involve the imposition of
criminal penalties for a refusal to submit to a blood test.
We are not persuaded by Bolourchi’s suggestion that he should face no
consequences for his lack of cooperation in submitting to a blood test, such as
the court’s instruction to jurors that, if they found a refusal occurred, the
refusal “may show” Bolourchi was aware of his guilt of the DUI charge. As
noted, Birchfield emphasized it was not holding that the Fourth Amendment
prohibits such “evidentiary consequences” of a refusal. (Birchfield, supra,
579 U.S. at pp. 476–477.)
Bolourchi contends that, because the Fourth Amendment required
police to obtain a warrant to conduct a blood draw, his lack of cooperation in
submitting to the test before the warrant was obtained “cannot constitute a
refusal under the law and, thus, cannot be used against him as evidence of
his consciousness of guilt.” (Italics added.) We disagree. First, to the extent
Bolourchi suggests (by his reference to his rights “under the law”) that, under
the implied consent statute, his conduct could not constitute a refusal or carry
any adverse consequences, he is incorrect.
In response to Birchfield, as noted above, see footnote 6, page 12 ante,
our Legislature in 2018 amended sections 23577, 23578, and 23612 to
eliminate the increased criminal penalties that previously applied in a DUI
prosecution when the driver refused to take a blood test (while leaving those
increased penalties in place for a refusal to take a breath or urine test).
(§§ 23577, subds. (a), (c), 23578, 23612, subd. (a)(1)(D); Assem. Bill No. 2717,
Stats. 2018, ch. 177, §§ 1–3.) But the Legislature did not change the
underlying rule in the implied consent law that, in some circumstances, a
giving CALCRIM No. 2130 (entitled “Refusal—Consciousness of Guilt”) but
not CALCRIM No. 2131 (entitled “Refusal—Enhancement”).
22
driver who is lawfully arrested for DUI is deemed to have consented to, and
must submit to, a blood test. (§ 23612, subd. (a)(1)(B), (2)(C).) There is no
statutory right not to submit to a blood test in this circumstance.
And the implied consent law continues to contemplate that a driver
who refuses to submit to a statutorily required blood test may face
consequences (other than criminal penalties) for the refusal. An arrested
person is to be told that his or her driving privileges may be administratively
suspended or revoked. (§ 23612, subd. (a)(1)(D) [consequences of failure to
submit to “the required breath, blood, or urine tests”]; see § 13353,
subd. (a)(1)–(3).) The arrested driver is also to be advised that a “refusal to
submit to a test or tests” “may be used against him or her in a court of law.”
(§ 23612, subd. (a)(4).)
As the Attorney General notes, where there is a statutory right to
refuse a particular test, it is error to admit evidence of the refusal. (People v.
Jackson (2010) 189 Cal.App.4th 1461, 1466 [error to admit evidence of
defendant’s refusal to take PAS test, because § 23612 granted the right to
refuse].) But Bolourchi had no statutory right to refuse to take a post-arrest
blood test, and the implied consent statute does not prohibit instruction or
comment on his refusal. As a statutory matter, he is simply incorrect that a
refusal to take a blood test “cannot constitute a refusal under the law and,
thus, cannot be used against him as evidence of his consciousness of guilt.”
Apart from the statute, we also find no constitutional error. Notably,
an instruction similar to CALCRIM No. 2130 was considered and upheld
against a constitutional challenge in Sudduth, supra, 65 Cal.2d at page 547
and footnote 5. Sudduth, a DUI case, did not involve a blood draw—it
involved a breath test—but it drew upon the reasoning in Schmerber (id. at
p. 546) and thus is instructive here. The defendant in Sudduth also relied on
23
Griffin v. California (1965) 380 U.S. 609, the United States Supreme Court’s
landmark case prohibiting comment on a criminal defendant’s failure to
testify.
The challenged instruction in Sudduth read in part as follows: “ ‘The
fact that such test is refused under such circumstances is not sufficient
standing alone and by itself to establish the guilt of a defendant but is a fact
which if proven may be considered by you in the light of all other proven facts
in deciding the question of guilt or innocence. Whether or not such conduct
shows a consciousness of guilt and the significance to be attached to such a
circumstance are matters for your determination.’ ” (Sudduth, supra,
65 Cal.2d at p. 547, fn. 5.)
Chief Justice Traynor’s opinion for the court in Sudduth explained:
“The sole rationale for the rule against comment on a failure to testify is that
such a rule is a necessary protection for the exercise of the underlying
privilege of remaining silent [citation]. A wrongful refusal to cooperate with
law enforcement officers does not qualify for such protection. A refusal that
might operate to suppress evidence of intoxication, which disappears rapidly
with the passage of time [citation], should not be encouraged as a device to
escape prosecution.” (Sudduth, supra, 65 Cal.2d at p. 546.)
Citing Sudduth as a leading precedent, the United States Supreme
Court reached a similar conclusion in Neville, supra, 459 U.S. at pages 554,
560, 564. “[T]he values behind the Fifth Amendment are not hindered when
the State offers a suspect the choice of submitting to the blood-alcohol test or
having his refusal used against him. The simple blood-alcohol test is so safe,
painless, and commonplace, [citation], that respondent concedes . . . the State
could legitimately compel the suspect, against his will, to accede to the test.
Given, then, that the offer of taking a blood-alcohol test is clearly legitimate,
24
the action becomes no less legitimate when the State offers a second option of
refusing the test, with the attendant penalties for making that choice.”
(Neville, at p. 563.)
In holding it was proper to instruct on consciousness of guilt or admit
evidence of the defendant’s refusal to test, Sudduth and Neville both focused
on the fact the defendant had no underlying Fifth Amendment right to refuse
a chemical test. (Neville, supra, 459 U.S. at pp. 560, fn. 10, 563; see Sudduth,
supra, 65 Cal.2d at p. 547.) Presumably recognizing it has long been settled
that a refusal to submit to chemical examination does not fall within the
purview of the Fifth Amendment, Bolourchi’s contention here is that, under
McNeely, he had an underlying Fourth Amendment right to refuse to submit
to a warrantless blood test, so an instruction allowing an inference of guilt
based on the refusal should be found to be improper.
Bolourchi draws our attention to Espinoza, supra, 10 Cal.App.5th 85,
where a Fourth District, Division Two panel noted some uncertainty about
whether civil consequences for refusal to take a blood test (there, the
administrative suspension of a driver’s license) were still permitted after
McNeely and Birchfield. (Espinoza, at pp. 113–114.) In that case, a
California Highway Patrol (CHP) officer arrested a driver (Espinoza) for DUI
and informed her that, pursuant to the implied consent law, she had to
submit to a blood or breath test. (Espinoza, at p. 94.) Espinoza, after stating
she was a public defender, referred to McNeely and made statements to the
effect that she would submit to a blood test, but only if police obtained a
warrant. (Espinoza, at pp. 93–94.) The arresting officer told Espinoza that
her willingness to submit to a blood test with a warrant would be treated as a
refusal. (Id. at p. 94.) The officer also stated the CHP’s policy was to obtain
warrants for forced blood draws only in felony DUI cases, and that no
25
warrant would be requested in Espinoza’s case. (Ibid.) No warrant was
obtained, so no blood test was taken. (Ibid.) In addition, Espinoza did not
submit to a breath test. (Ibid.)
Following administrative proceedings, Espinoza’s driver’s license was
suspended for one year for refusal to submit to a chemical test as required by
the implied consent law. (Espinoza, supra, 10 Cal.App.5th at p. 96.) The
superior court denied Espinoza’s petition for writ relief (id. at pp. 96–97), and
Espinoza appealed (id. at p. 97). Espinoza argued she did not refuse to
submit to a chemical test. (Id. at p. 103.) She contended “she had a right
under McNeely to force the police to obtain a warrant before they could seize
her blood for testing and, therefore, her standing on her rights did not
constitute a refusal to submit to a chemical test” under the implied consent
law. (Id. at pp. 103–104.)
The appellate court rejected Espinoza’s argument, stating: “Although
Espinoza had a constitutional right to be free from a warrantless, coerced
search of her blood incident to her lawful arrest, she had no such right with
respect to a breath test. When Espinoza was told the policy of the CHP was
to obtain warrants for forced blood draws only in felony DUI cases, and that a
warrant would not be obtained in her case, Espinoza was required to choose a
breath test. Espinoza’s purported consent to a blood draw, to the exclusion of
a breath test, constituted refusal to submit to a chemical test.” (Espinoza,
supra, 10 Cal.App.5th at p. 104.)
The Espinoza court explained that, under the implied consent law, a
driver who provides only conditional, or purported, consent when requested
to submit to a chemical test is deemed to have refused the test. (Espinoza,
supra, 10 Cal.App.5th at pp. 104–105.) Espinoza’s position that she would
consent to a blood test only if the officer obtained a warrant “did not
26
constitute clear and unequivocal consent to a chemical test and, therefore,
was not actual consent.” (Id. at p. 105.) Relying in part on the fact Espinoza
also did not submit to a breath test, the appellate court concluded that
“Espinoza’s purported consent to a blood test, and her failure to submit to
and complete a breath test, constituted refusal to submit to a chemical test.”
(Id. at p. 112.)
In Espinoza, the Department of Motor Vehicles (Department) argued
Espinoza’s refusal to submit to a blood test was a sufficient basis for the
license suspension, and there was no need to address breath tests. (Espinoza,
supra, 10 Cal.App.5th at p. 112.) The Espinoza court stated it would have
agreed with this position prior to Birchfield. (Espinoza, at p. 113.) The
Espinoza court went on to state, however, “it is unclear whether the high
court would approve of a civil license suspension based solely on a motorist’s
refusal to submit to a warrantless blood test.” (Ibid.)
Elaborating on this point, the Espinoza court noted that, under
Birchfield and McNeely, “[t]he police could not force Espinoza to submit to a
blood test against her will unless they obtained a warrant or showed there
were exigent circumstances that justified a warrantless search.” (Espinoza,
supra, 10 Cal.App.5th at p. 113.) The Espinoza court stated: “Consequently,
we assume without deciding, that Espinoza could refuse to submit to a
warrantless blood test unless the police obtained a warrant, and that,
without more, her refusal to do so could not result in her license being
suspended.” (Ibid.)
But Espinoza’s failure to submit to a breath test provided a valid basis
to suspend her license. The Espinoza court stated that, under Birchfield, “the
Fourth Amendment does not prohibit the police from forcing a motorist to
submit to a warrantless breath test incident to his or her arrest, the motorist
27
has no right to refuse to submit to a breath test or to condition his or her
submission on the police obtaining a warrant, and the motorist’s refusal to
submit to the breath test may be the basis of criminal penalties. [Citation.]
In light of that clear holding, we conclude refusal to submit to a breath test
incident to arrest may also be the basis of imposing civil penalties under the
implied consent law, including suspension or revocation of the motorist’s
driver’s license.” (Espinoza, supra, 10 Cal.App.5th at p. 113.)
In so holding, the Espinoza court addressed an argument by the
Department that Birchfield did not apply to the civil penalties in Espinoza’s
case, because Birchfield only addressed criminal liability for refusing to
submit to a chemical test. (Espinoza, supra, 10 Cal.App.5th at p. 113.) We
acknowledge that the discussion on this point in Espinoza gestures toward
the analysis Bolourchi urges us to adopt in this case. According to the
Espinoza court, “the Department contends the high court in Birchfield
expressly stated it was not holding that civil penalties could not be imposed if
a motorist refuses to submit to a chemical test.” (Id. at pp. 113–114.) The
Espinoza court was not persuaded that the passage on this point in Birchfield
(a passage we have discussed above) established the propriety of imposing
civil penalties for a refusal to submit to a warrantless blood test, so the
Espinoza court instead grounded its decision on Espinoza’s refusal to submit
to a breath test. (Espinoza, at p. 114.)
The Espinoza court explained its reasoning as follows: “True, the court
in Birchfield stated its ‘prior opinions have referred approvingly to the
general concept of implied-consent laws that impose civil penalties and
evidentiary consequences on motorists who refuse to comply,’ and that
‘nothing we say here should be read to cast doubt on them.’ [Citations.] But
the legality of civil penalties for refusing to submit to a warrantless blood test
28
was not squarely presented in Birchfield. (See [People v. Harris, supra,
234 Cal.App.4th at p. 684] [‘ “ ‘ “It is axiomatic that language in a judicial
opinion is to be understood in accordance with the facts and issues before the
court. An opinion is not authority for propositions not considered.” ’ ” ’].) We
remain somewhat doubtful whether the high court would approve of a civil
license suspension predicated solely on a motorist’s refusal to submit to a
warrantless blood test. Rather than decide whether Espinoza’s license could
be lawfully suspended based solely on her refusal to submit to a warrantless
blood test, we conclude her license was lawfully suspended because she did
not submit to a warrantless breath test.” (Espinoza, supra, 10 Cal.App.5th at
p. 114.)
Here, of course, the facts differ from those in Espinoza. By the time
Bolourchi was arrested, he was suspected of driving under the influence of a
drug rather than alcohol, and the only test he was offered and refused to take
was a warrantless blood test. Espinoza assumed, without deciding, that
under Birchfield (and despite the qualifying language used in that case),
“civil penalties” (such as a license suspension) could not be imposed in this
circumstance. (Espinoza, supra, 10 Cal.App.5th at pp. 113–114.) The
present case raises a similar issue, though here we are dealing with the
imposition of “evidentiary consequences” (Birchfield, supra, 579 U.S. at
p. 477) (i.e., the instruction allowing an inference of consciousness of guilt)
attending Bolourchi’s refusal to submit to a warrantless blood test in a
criminal trial. Whatever may be the case for the civil penalty of license
suspension, we believe a DUI arrestee may be constitutionally required to
face an adverse inference at his trial on a DUI charge as a cost of refusing a
blood test.
29
As we read Birchfield, that case does not prohibit the imposition of
such evidentiary consequences—here in the form of the CALCRIM No. 2130
instruction Bolourchi’s jury was given. As noted, the Birchfield court did not
lump together all potential consequences of a refusal and hold the Fourth
Amendment prohibits all of them. (Birchfield, supra, 579 U.S. at pp. 476–
477.) Instead, the court prohibited only “criminal penalties” (id. at p. 477),
and, while the court did not expressly hold that other consequences are
permissible, it stated that its opinion should not “be read to cast doubt on”
“implied-consent laws that impose civil penalties and evidentiary
consequences on motorists who refuse to comply.” (Id. at pp. 476–477.) Bear
in mind that here the only criminal penalty sought for Bolourchi’s refusal, the
section 23577 sentencing enhancement allegation, was dismissed before his
case went to the jury.
The Birchfield court’s language suggests it viewed the different
consequences as part of a continuum, with the most severe consequence
(criminal penalties) violating the Fourth Amendment because “[t]here must
be a limit to the consequences to which motorists may be deemed to have
consented by virtue of a decision to drive on public roads.” (Birchfield, supra,
579 U.S. at p. 477.) Applying a Fourth Amendment reasonableness standard,
the court concluded that “motorists cannot be deemed to have consented to
submit to a blood test on pain of committing a criminal offense.” (Birchfield,
at p. 477.)
In our view, that does not mean the imposition of lesser consequences is
unreasonable. In a different portion of its opinion, the Birchfield court
stressed that, “The States and the Federal Government have a ‘paramount
interest . . . in preserving the safety of . . . public highways.’ ” (Birchfield,
supra, 579 U.S. at p. 464.) Implied consent laws, which are designed to
30
discourage drivers from driving while impaired (and to encourage cooperation
with testing that aims to determine if a driver is impaired), “serve a very
important function.” (Id. at p. 466.) In light of the important government
interests involved, we decline to extend Birchfield to prohibit the imposition
of an evidentiary consequence for Bolourchi’s refusal to submit to a blood
test. To the extent Espinoza can be read to support a contrary analysis, we
respectfully disagree with it.
Finally, we note that, although Espinoza expressed uncertainty in 2017
about the reach of the 2016 Birchfield decision, the Legislature in 2018
enacted statutory amendments reflecting an understanding that, while
Birchfield prohibits criminal penalties for a refusal to submit to a blood test,
there is no constitutional requirement that such a refusal must have no
consequences at all. (Assem. Bill No. 2717, Stats. 2018, ch. 177, §§ 1–3; see
Legis. Counsel’s Dig., Assem. Bill No. 2717 [Birchfield prohibits criminal
penalties, but not administrative penalties, for refusal to submit to a blood
test]; § 23577, subd. (c) [“The penalties in this section [increased criminal
penalties for refusal to submit to a breath or urine test] do not apply to a
person who refused to submit to or complete a blood test pursuant to Section
23612. This section does not prohibit imposition of administrative actions
involving driving privileges.”].) Thus, the Legislature does not appear to
share Bolourchi’s view that DUI arrestees may freely refuse to submit to
blood draws and expect to avoid not only criminal conviction but all other
adverse consequences for the refusal.
* * *
In sum, we reject Bolourchi’s argument that the CALCRIM No. 2130
instruction given in this case “improperly invited the jury to penalize [him]
for lawfully asserting [a] constitutional right” to refuse consent to a
31
warrantless blood draw. The Birchfield court made clear it was not
recognizing an unqualified Fourth Amendment right (1) to refuse to take a
blood test, and (2) to be free of any consequences flowing from the refusal.
(Birchfield, supra, 579 U.S. at pp. 476–477.) Instead, the Birchfield court
concluded only that, applying a Fourth Amendment reasonableness standard,
“motorists cannot be deemed to have consented to submit to a blood test on
pain of committing a criminal offense.” (Birchfield, at p. 477, italics added.)
Birchfield did not prohibit (and stressed it did not intend to “cast
doubt” on) implied consent laws that impose civil penalties and evidentiary
consequences. (Birchfield, supra, 579 U.S. at pp. 476–477.) There is a
throughline here. The acknowledged validity of imposing adverse
consequences on DUI testing refusers we see in all of the United States
Supreme Court’s Fourth Amendment opinions addressing implied consent
laws, first in the McNeely plurality opinion, again in Birchfield, and again in
the Mitchell plurality opinion—so long as the consequence is not a criminal
conviction—supports this conclusion.
III. DISPOSITION
The judgment is affirmed.
STREETER, J.
WE CONCUR:
BROWN, P. J.
HITE, J.*
* Judge of the Superior Court of California, City and County of San
Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
32
Trial Court: Superior Court of California, County of Marin
Trial Judge: Hon. Beth S. Jordan
Counsel: Heather E. Shallenberger, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence, Senior
Assistant Attorney General, Bridget Billeter, Supervising
Deputy Attorney General, and Julia Y. Je, Deputy Attorney
General, for Plaintiff and Respondent.
People v. Bolourchi – A167289