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Law Office of Michael J. Kennedy

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Police Play Games with Drunk Driving Arrests

Since they know the Courts will not look askance against them, and because MADD, SADD and other neoprohibitionist groups have effectively demonized those arrested for drunk driving with fraudulent statistics and scary high school programs, the police, especially the vaunted California Highway Patrol [CHP], are allowed to get away with playing illicit games in drunk driving arrests.

One of the many new games is their limited implied consent advisals.  As many know, if you are lawfully arrested for drunk driving in California, you are commanded by state law to submit to a blood or breath test.  If you select the latter, they are supposed to inform you that you now have a right to a back-up test of urine or breath, because our cheap breath devices do not save a sample for retesting.  The cops generally will not tell you of your right to a backup test of urine, because it is too icky for them, and because they know if you have already chosen breath over blood, you are not likely now to want to get stabbed by a needle, so there won't be a test that you can retest.

But the courts have ruled that because one cannot say that commanding a person to submit to a test is really consensual, the cops are supposed to give you a tripartite advisal: you are to be told blood, breath, or refusal. If you choose refusal at that point, they are then to tell you of the administrative and criminal downsides of refusing [punishment, comment, loss of license, etc.]  But the cops generally do not do as the court of appeal commanded in that regard. Indeed, the CHP announced a policy in a written briefing, which they inscribed into the Highway Patrol Manual as a firm policy, but all of the Chippies I have dealt with since that policy was enacted in 2014 feign ignorance of it.

The law enforcers are ignorant of the law they are enforcing [or feigning ignorance!]

 - but the judges don't care.

I have just written the CHP Commissioner [below] asking if it is his policy that his officers can ignore edicts from on high in the enforcement of drunk driving laws.  Is this another drunk driving exception to established standards [about which I have written extensively]; are they thumbing their noses at their command structure?  Will the command structure do anything about it?  Stand by.

CHP Commissioner Letter re Implied Consent001.pdf
Does the CHP Commissioner Allow his Officers to Break Law?
Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987

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