Jury may draw an adverse inference of consciousness of guilt based on refusal to consent to a chemical test after DUI arrest

THE PEOPLE, Plaintiff and Respondent, v. HAADI BOLOURCHI, Defendant and Appellant. (Cal. Ct. App., June 28, 2024, No. A167289) 2024 WL 3218945, at *1

Summary: Under Vehicle Code 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). The issue held:  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 the jury may at the motorist’s ensuing DUI trial draw an adverse inference of consciousness of guilt based on that refusal.

Here, a jury convicted Bolourchi of a DUI offense in violation of section 23152, subdivision (f), and 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.

The Court found no instructional error and affirmed.

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.)

The Arrest

Officer Finerty administered a preliminary alcohol screening (PAS) test and 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.

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. An empty pill container for the prescription drug Alprazolan was found in the car. 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).

Officer Finerty obtained a warrant for the blood test. 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.

The CALCRIM No. 2130 Instruction

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 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.” Because Bolourchi did not submit to the test without a warrant, the court granted the prosecutor’s motion and stated it would give the instruction.

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.)

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).) 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 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)).

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)), and that failure to submit to the required “breath, blood, or urine tests” will result in the administrative suspension or revocation of driving privileges  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.”

The CALCRIM No. 2130 instruction given in this case was proper because it only had evidentiary consequences.

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