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.
• 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].
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[f] (Matthew Bender).
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
VEHICLE OFFENSES CALCRIM No. 2130