Brief Bank # B-957 (Re: F 16.835 n5 [Refusal Of Sobriety Test: No Obligation To Take Second Test].)
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Date of Brief: September, 2002.
THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE
JURY WITH CALJIC NO. 16.835 (REFUSAL TO
TAKE SOBRIETY TEST -CONSCIOUSNESS OF GUILT),
SINCE APPELLANT TOOK A SOBRIETY TEST
The trial court instructed the jury with CALJIC No. 16.835 as follows:
If you find that the defendant was offered and refused a choice of a bllod, urine, or breath sobriety test after he had been made aware of the nature of the tests and their purpose, that refusal is not sufficient, standing alone and by itself, to establish the guilt of the defendant, but it is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether the defendant is guilty or not guilty. The weight to which this circumstance is entitled and whether or not that conduct shows a consciousness of guilt are matters for your determination.
Appellant contends that it was prejudicial error to give CALJIC No. 16.835, since he had already been offered, and had taken, a breath sobriety test, and was under no obligation to submit to a second test.
The evidence introduced in the case showed that appellant had been given a PAS test, and the result of that test was positive for the presence of alcohol. (RT 95, 97.)
Having taken one test, appellant was not required to submit to another one. In People v. Fiscalini (1991) 228 Cal.App.3d 1639, 1644-1645, the defendant had provided a urine sample, but the investigating officer stated that he also wanted to have a test of the suspect’s blood. When Fiscalini refused to provide this sample voluntarily, it was taken by force. (Id., at p. 1642.) The defendant moved to suppress the results of the blood test; the prosecution claimed the second test was reasonable under the rationale of Schmerber v. California (1966) 384 U.S. 757.
The Fiscalini court recognized that Schmerber allowed the involuntary taking of blood from a suspect in certain circumstances, it held that even under California’s implied consent law, a person need only submit to one test for the presence of alcohol. (Fiscalini, supra, 228 Cal.App.3d at p. 1645.) As the court stated: “Thus, having already obtained one sample from Fiscalini with his consent, the government did not demonstrate any need to force him to undergo a second intrusion.” (Ibid., citing Winston v. Lee (1985) 470 U.S. 753, 765-766; accord, People v. Sugarman (2002) 96 Cal.App.4th 210, 215.)
The same rationale applies with respect to the issue of a refusal to take a chemical test. The government, having obtained a defendant’s submission to one chemical test, cannot make him submit to another test, even under the implied consent law. The implied consent law was enacted to avoid undue intrusions on a person’s privacy, while still allowing the government to obtain prompt evidence of a suspect’s blood alcohol around the time of the driving. (Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 77.) It is the evanescent nature of the evidence sought (blood alcohol, which is metabolized in the body), which distinguishes drunk driving cases from the usual requirement for a warrant to obtain the evidence. (People v. Trotman (1989) 214 Cal.App.3d 430, 437.) In the instant case, appellant had satisfied the intent of the law by voluntarily providing a sample for the PAS breath test. He was under no obligation to provide another test.
It is apparent that the results of a PAS test are just as probative as the results from other tests. In People v. Williams (2002) 28 Cal.4th 408, the defendant had submitted to a PAS test, and the prosecution had used the result at trial. On appeal, the defendant argued that the results of the test should have been excluded. However the high court held that the results of a PAS test are relevant and admissible, just as any other breath test results are admissible, as long as the device is shown to be in working order, and the test was properly given by a qualified operator. (Id., at pp. 415-417.)
Appellant understands that the instruction given, CALJIC No. 16.835, is a permissive, rather than a mandatory inference instruction. But the instruction permits the jury to infer consciousness of guilt from a finding of refusal to take an offered chemical test. The trial court must still act as a “gatekeeper” and make an initial determination that facts have been shown which permit the use of the instruction. [Footnote 1] (People v. Hannon (1977) 19 Cal.3d 308, 313-314 – there must be sufficient evidence in the record for the jury to draw the inference called for by the jury instruction.)
In the instant case there was no dispute that appellant had taken a PAS test. Both sides stipulated to this fact. (RT 97.) Therefore the predicate fact for making CALJIC No. 16.835 improper was indisputably shown. The prosecution could not take the diametrically opposed positions that appellant had indeed taken the PAS test, but that he had also refused to take a chemical test for the detection of alcohol.
Appellant contends that this was prejudicial error, even under the test of People v. Watson (1956) 46 Cal.2d 818, 837. It should be noted that when a case is close, a small degree of error should be considered enough to have influenced the jury wrongfully to have convicted a defendant. (People v. Wagner (1975) 13 Cal.3d 612, 621; Strickland v. Washington (1984) 466 U.S. 668, 699.)
The facts presented at trial did not show a strong case that appellant was driving under the influence of alcohol. Although the arresting officer felt that appellant did not perform well on the field sobriety tests, he admitted that appellant’s driving appeared to be normal, except for the fact that he was speeding. (RT 19-20, 28-32, 42-44, 46, 68.) Appellant was perfectly able to present his paperwork to the officer, and appeared to talk clearly. (RT 48, 57.) Appellant explained that he was upset with his girlfriend, and he did seem agitated. (RT 49-50.) The officer admitted that there are no objective standards as to when a person passes or fails a field sobriety test, and that some persons he felt had failed in the past, had actually been shown to be under the legal limit by a chemical test. (RT 55-56, 60.) Thus the evidence was in close balance on whether appellant’s blood alcohol was over the legal limit.
Other factors indicating a close case include the following.
The length of jury deliberations are an indication of the closeness of the case. (People v. Woodard (1979) 23 Cal.3d 329, 341-342, considered six hours of deliberation to indicate that the jury had trouble reaching a verdict, and hence meant that the case was a close one. In People v. Cardenas (1982) 31 Cal.3d 897, 907, the court held that deliberations of twelve hours was a “graphic demonstration of the closeness of this case”.
In the instant case, jury selection took up the whole morning of the first day (February 11, 2002), and the actual presentation of the case did not begin until after 1:45 p.m. (RT 12-14.) Opening statements took up much of the afternoon. (RT 15.) Actual testimony of witnesses did not begin until after these opening statements, and lasted only until 3:30 p.m. (CT 20; RT 82-83.) The case resumed on February 13, 2002, but only brief testimony was given, and the rest of the morning was taken up with in chambers matters, and closing argument and jury instructions. (RT 82, 84-149; CT 63.) The jury started deliberations at noon, and a verdict was reached at 2:50 p.m. (CT 63; RT 150, 152.) It appears that presentation of evidence took two hours at most, and the jury deliberated almost that long before it reached its verdict. Appellant contends that under the authorities cited above, this indicates that the jury had a difficult time reaching its verdict. (See also People v. Filson (1994) 22 Cal.App.4th 1841.)
Another test for prejudice is whether the prosecutor has used the error in order to convince the jurors of the defendant’s guilt. (Woodard, supra, 23 Cal.3d at p. 341.) In the instant case, the prosecutor exploited the erroneous jury instruction a great deal. Twice during closing argument, he referred to the supposed refusal to take a chemical test, and urged the jury to consider this as a strong factor pointing toward guilt. (RT 104, 107.) Again during rebuttal argument, the prosecutor referred to the purported “refusal” two different times. (RT 127, 129-130.) In fact the prosecutor even suggested a particularly nefarious scenario: that defendant had taken a chemical test the last time he had been arrested for drunk driving; that he had spoken to his attorney during the course of that prior criminal case (and had presumably been advised not to take a chemical test in the future); and that this time appellant refused the chemical test because he knew it would show that his blood alcohol was over the legal limit. (RT 130-131.) If the “refusal” evidence was so inconsequential as to guilt, then why did the prosecutor go over that evidence time and again in an attempt to convince the jury to convict?
For the reasons cited above, it is submitted that the case should be considered a close one, so that any significant error should be deemed reversible error. Therefore the error in instructing the jury that they could infer consciousness of guilt from appellant’s purported refusal to take a chemical test, when he had actually taken a chemical test, was prejudicial error.
Footnote 1: The editors of CALJIC have implicitly recognized the gatekeeper function of the trial court in their use note to CALJIC No. 16.835, which admonishes the court not to utilize the instructon if the defendant is exempt from taking the test under Vehicle Code section 23612 (formerly section 23157).