California Criminal Jury Instructions (CALCRIM) (2017)

2130. Refusal - Consciousness of Guilt

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(iv) Refusal
2130.Refusal—Consciousness of Guilt (Veh. Code, § 23612)
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.
<Give for refusal by words or conduct>
[If the defendant refused to submit 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 a chemical
test cannot prove guilt by itself.]
<Give for refusal by silence>
[A defendant’s silence in response to an officer’s request to (submit to a
chemical test/ [or] complete a chemical test) may be a refusal. If you
conclude that the defendant’s silence was a refusal, it is up to you to
decide its meaning and importance. However, evidence that the
defendant refused to submit to a chemical test cannot prove guilt by
itself.]
New January 2006; Revised August 2009, March 2017
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
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whether this entire instruction, or the bracketed word “lawfully” 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 Offıcer.
AUTHORITY
• 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].
• Silence in Response to Request May Constitute Refusal. Garcia v. Department
of Motor Vehicles (2010) 185 Cal.App.4th 73, 82–84 [109 Cal.Rptr.3d 906].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 293–303.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[2][f] (Matthew Bender).
RELATED ISSUES
Silence
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
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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).)
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