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25 W. St. U. L. Rev. 43 (1997-1998)
Do I Really Have a Choice - Compulsory Blood Tests on Drunk Drivers and the Fourth Amendment

handle is hein.journals/wsulr25 and id is 49 raw text is: Do I Really Have A Choice? Compulsory Blood Tests on Drunk Drivers and the Fourth Amendment Jeffrey N. Wilens INTRODUCTION Tens of thousands of people are arrested in California each year for driving under the influence (DUI) of alcohol, drugs or a combination thereof.' Vehicle Code section 23157, commonly known as the Implied Consent Law, provides that any person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood, breath or urine .... 2 Subdivision (2) (A) *. Mr. Wilens is certified by the California State Bar as a specialist in criminal law and now practices in Irvine, California. He graduated from Boalt Hall School of Law in 1985. Mr. Wilens is co-counsel on a lawsuit that is on appeal to the Ninth Circuit Court of Appeals in which it was alleged that officers from one police department had routinely denied driving under the influence arrestees their right to choose which chemical test to take. 1. See CAL. VEH. CODE § 23152(a)-(b) (West 1997). All statutory references are to the California Vehicle Code unless otherwise noted. In 1995, about 155,000 persons were arrested for driving under the influence. DEPARTMENT OF MOTOR VEHICLES, DIVISION OF DRIVER SAFETY AND LICENSING, ANNUAL SUSPENSION AND REVOCATION REPORTS (Jan 1995 through Dec 1995). These figures understate the number of arrests because arrestees who submitted to a breath test with a result of less than .08 and arrestees who refused to submit to any test are excluded. 2. CAL. VEH. CODE § 23157(a)(1) (West 1997). The subdivision, in relevant part, provides: Any person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood, breath, or urine for the purpose of determining the alcoholic content of his or her blood, and to have given his or her consent to chemical testing of his or her blood or urine for the purpose of determining the drug content of his or her blood, if lawfully arrested for any offense allegedly committed in violation of Section 23140, 23152, or 23153. The testing shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in

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