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LEGAL VIEW

Drunk-Driving Test Under Attack

May 10, 1990|JEFFREY S. KLEIN | Klein , an attorney and assistant to the publisher of The Times

By driving an automobile, you agree to be bound by certain legal rules and regulations. Most of them are straightforward and even obvious: You must stop at red lights, obey traffic officers and drive in only one lane.

Other regulations are more complicated. For example, state law says that anyone who drives a motor vehicle has implicitly consented to a chemical test (following a lawful arrest for driving under the influence of alcohol). You have your choice of three tests--blood, urine or breath--but you must choose one. If you refuse, your driving license will be suspended.

If you are in the position of having been arrested for drunk driving, all of this will be explained to you by the arresting officer, who usually reads from a preprinted card. The law was meant to give authorities a "non-physical means of coercing an arrestee into submitting to a chemical test," explained one court.

This may seem simple enough, but actually this statute--which is intended to persuade an uncooperative suspect to cooperate--has faced many legal contests over the years. The statute has been challenged as a violation of the privilege against self-incrimination, as an unreasonable search or seizure, and as a denial of equal protection under the law. And it has withstood all the challenges.

In a 1981 California Supreme Court case, one Los Angeles man who had his license suspended after refusing to take a chemical test argued that driving was a fundamental legal right, comparable to the right of free speech or freedom of religion, and that the suspension violated his substantive rights of due process. The court didn't buy that argument either.

More recently, courts have been called on to interpret what constitutes a refusal to submit to a test. The courts have consistently ruled that a "conditional consent" is not good enough. What that means is that if you put restrictions on your acceptance, the police can treat it as a refusal, and then your license will be suspended. For example, if you state that you'll allow the test only if your attorney is present, or if your own personal physician conducts the test, that's as good as saying you won't allow the test.

In one case, the suspect, a 74-year-old lawyer, insisted on looking at a card in his wallet that had information about the accuracy of the three tests. But the arresting Highway Patrol officer, in accordance with policy, refused to take the handcuffs off the lawyer to allow him to check the card. A court of appeal later ruled that the lawyer's actions constituted refusal to submit to any test and upheld the suspension of his license.

There was a different result in March in an appellate case involving an Orange County man. After his arrest, the man agreed to submit to a blood test, but when the technician who was to draw the blood arrived, he "looked like he had just gotten out of bed," according to the decision handed down by the appellate court. The suspect refused to allow this "tired," "disheveled"-looking technician to take his blood unless he first showed some identification.

The court agreed that insisting on identification did not constitute refusal to submit to the test and declared the suspension invalid. The suspect was entitled to know that the technician was what he purported to be--"a person qualified by statute to draw blood in a proper manner."

"Where that person intends to intrude into the body with a needle, it is not only reasonable, but prudent to require identifying information," the court noted. On the other hand, the court added it was not suggesting that such assurances be given in every case.

Of course, all of these legal distinctions will probably never fit neatly on a preprinted card.

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