Criminal Law

2130. Refusal - Consciousness of Guilt

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/her) to do so and explained the test's nature to the defendant, then the defendant's conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant refused to submit to such a test, it is up to you to decide the meaning and importance of the refusal. However, evidence that the defendant refused to submit to such a test cannot prove guilt by itself.

Bench Notes

Instructional Duty

The court may instruct the jury that refusal to submit to a chemical analysis for blood alcohol content may demonstrate consciousness of guilt. (People v. Sudduth (1966) 65 Cal.2d 543, 547 [55 Cal.Rptr. 393, 421 P.2d 401].) There is no sua sponte duty to give this instruction.

Do not give this instruction if the defendant is exempted from the implied consent law because the defendant has hemophilia or is taking anticoagulants. (See Veh. Code, § 23612(b) & (c).)

The implied consent statute states that "[t]he testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of Section 23140, 23152, or 23153." (Veh. Code, § 23612(a)(1)(C).) If there is a factual issue as to whether the defendant was lawfully arrested or whether the officer had reasonable cause to believe the defendant was under the influence, the court should consider whether this instruction is appropriate and/or whether the jury should be instructed on these additional issues. For an instruction on lawful arrest and reasonable cause, see CALCRIM No. 2670, Lawful Performance: Peace Officer.


Implied Consent Statute. Veh. Code, § 23612.

Instruction Constitutional. People v. Sudduth (1966) 65 Cal.2d 543, 547 [55 Cal.Rptr. 393, 421 P.2d 401].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, §§ 226-235.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145, Narcotics and Alcohol Offenses, § 145.02[2][f] (Matthew Bender).

Related Issues


Silence in response to repeated requests to submit to a chemical analysis constitutes a refusal. (Lampman v. Dept. of Motor Vehicles (1972) 28 Cal.App.3d 922, 926 [105 Cal.Rptr. 101].)

Inability to Complete Chosen Test

If the defendant selects one test but is physically unable to complete that test, the defendant's refusal to submit to an alternative test constitutes a refusal. (Cahall v. Dept. of Motor Vehicles (1971) 16 Cal.App.3d 491, 496 [94 Cal.Rptr. 182]; Kessler v. Dept. of Motor Vehicles (1992) 9 Cal.App.4th 1134, 1139 [12 Cal.Rptr.2d 46].)

Conditions Placed on Test by Defendant

"It is established that a conditional consent to a test constitutes a refusal to submit to a test within the meaning of section 13353." (Webb v. Miller (1986) 187 Cal.App.3d 619, 626 [232 Cal.Rptr. 50] [request by defendant to see chart in wallet constituted refusal, italics in original]; Covington v. Dept. of Motor Vehicles (1980) 102 Cal.App.3d 54, 57 [162 Cal.Rptr. 150] [defendant's response that he would only take test with attorney present constituted refusal].) However, in Ross v. Dept. of Motor Vehicles (1990) 219 Cal.App.3d 398, 402-403 [268 Cal.Rptr. 102], the court held that the defendant was entitled under the implied consent statute to request to see the identification of the person drawing his blood. The court found the request reasonable in light of the risks of HIV infection from improper needle use. (Id. at p. 403.) Thus, the defendant could not be penalized for refusing to submit to the test when the technician declined to produce identification. (Ibid.)

Defendant Consents After Initial Refusal

"Once the driver refuses to take any one of the three chemical tests, the law does not require that he later be given one when he decides, for whatever reason, that he is ready to submit. [Citations.] [¦] . . . Simply stated, one offer plus one rejection equals one refusal; and, one suspension." (Dunlap v. Dept. of Motor Vehicles (1984) 156 Cal.App.3d 279, 283 [202 Cal.Rptr. 729].)

Defendant Refuses Request for Urine Sample Following Breath Test

In People v. Roach (1980) 108 Cal.App.3d 891, 893 [166 Cal.Rptr. 801], the defendant submitted to a breath test revealing a blood alcohol level of 0.08 percent. The officer then asked the defendant to submit to a urine test in order to detect the presence of drugs, but the defendant refused. (Ibid.) The court held that this was a refusal under the implied consent statute. (Ibid.)

Sample Taken by Force After Refusal

"[T]here was no voluntary submission on the part of respondent to any of the blood alcohol tests offered by the arresting officer. The fact that a blood sample ultimately was obtained and the test completed is of no significance." (Cole v. Dept. of Motor Vehicles (1983) 139 Cal.App.3d 870, 875 [189 Cal.Rptr. 249].)

Refusal Admissible Even If Faulty Admonition

Vehicle Code section 23612 requires a specific admonition to the defendant regarding the consequences of refusal to submit to a chemical test. If the officer fails to properly advise the defendant in the terms required by statute, the defendant may not be subject to the mandatory license suspension or the enhancement for willful refusal to complete a test. (See People v. Brannon (1973) 32 Cal.App.3d 971, 978 [108 Cal.Rptr. 620]; People v. Municipal Court (Gonzales) (1982) 137 Cal.App.3d 114, 118 [186 Cal.Rptr. 716].) However, the refusal is still admissible in criminal proceedings for driving under the influence. (People v. Municipal Court (Gonzales), supra, 137 Cal.App.3d at p. 118.) Thus, the court in People v. Municipal Court (Gonzales), supra, 137 Cal.App.3d at p. 118, held that the defendant's refusal was admissible despite the officer's failure to advise the defendant that refusal would be used against him in a court of law, an advisement specifically required by the statute. (See Veh. Code, § 23612(a)(4).)

(New January 2006)