DUI Refusal to Submit = Consciousness of Guilt?

It may come as a surprise to some of our readers of this website and some of our clients that a jury may be told that a DUI suspect’s refusal to submit to a breath or blood test may be regarded as the suspect’s consciousness of guilt, similar to an admission of guilty or confession.  We do not like this, but it is the law.  This has been the law for decades, but the recent (June 28, 2024) case of People v. Haadi Bolourchi reiterated this, which we summarize below.

In the early morning hours of September 22, 2018, while on patrol in San Rafael, Officer Finerty noticed a black Dodge Challenger with tinted windows, obscuring his view of the driver.  The car’s rear exhaust was emitting loud noises.  Both the tinted windows and the loud exhaust violated the Vehicle Code.

Officer Finerty then observed the driver stop his car in the middle of an intersection while facing a red light and decided to pull over the car.

The driver, Mr. Haadi Bolourchi, drove about one hundred yards forward to the parking lot of a 7-11 and stopped there.  Mr. Bolourchi then got out of his car and walked into the 7-11, seemingly oblivious to the fact that a police car with its flashing lights had just trailed him into the parking lot, with its siren sounding no less.

Officer Finerty then told Mr. Bolourchi to get back in his car and Mr. Bolourchi refused.  According to Officer Finerty, Mr. Bolourchi’s eyes were red and watery, the tone of his speech was low and the sound was slow.  He was unsteady on his feet.

Mr. Bolourchi then submitted to a Preliminary Alcohol Screening (PAS) test which showed no evidence of alcohol.  Mr. Bolourchi then admitted to smoking marijuana the prior day.

Officer Finerty then arrested Mr. Bolourchi and found an empty pill bottle for Alprazolam.  Mr. Bolourchi admitted that he took an Alprazolam pill about 12 hours earlier.

Officer Finerty then drove Mr. Bolourchi to the police station to have a blood test, which Mr. Bolourchi agreed to take.  While enroute to the blood test, Mr. Bolourchi offered to give the officer $1,000 if the officer would let him go.  Then Mr. Bolourchi refused to submit to the blood test unless the officer obtained a warrant first.  The officer then did not do so.

At trial, the judge read the jury CALCRIM No. 2130 that states that the jury may consider a defendant’s refusal to submit to a chemical test of his blood as consciousness of guilt, however, the refusal to submit cannot prove guilt by itself.

The jury then found Mr. Bolourchi guilty and in separate proceedings found that Mr. Bolourchi had suffered three prior convictions for DUI.  The judge placed Mr. Bolourhci on three years of probation and ordered that he serve 180 days in county jail.

Mr. Bolourchi then appealed the conviction to the First Appellate District, arguing that the trial court erred by instructing the jury with CALCRIM 2130 because he had a Fourth Amendment right to demand that police obtain a search warrant before he submitted to a blood draw.

The First Appellate District denied the appeal.  It first explained that under Vehicle Code § 23612(a)(1)(B), drivers are deemed to have given their consent to blood testing for purposes of determining the drug content of their blood, if lawfully arrested for DUI.  However, a driver cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.  Birchfield v. North Dakota (2016) 579 U.S. 438, 477. 

Here, the court noted that short of criminal conviction, states may still use implied consent laws to impose adverse consequences on DUI arrestees who refuse blood testing, including evidentiary consequences.

Because Mr. Bolourchi was not punished criminally for his refusal to submit to a warrantless blood test, his consent argument, the court reasoned, was unpersuasive.  Mr. Bolourchi had no statutory right to refuse to take a post-arrest blood test and the implied consent statute did not prohibit instruction or comment on the refusal.  Therefore, the First Appellate District affirmed the conviction.