Vehicle Code section 23612 sets forth the requirements of California's implied consent law, including the information which the officer is required to give a suspect who has been arrested for drunk driving. The language of the statute is mandatory, repeatedly stating that "the officer shall advise the person..."
Despite this, however, even a willful failure of the officer to properly advise a suspect of the implied consent provisions will not constitute grounds for suppression of the blood-alcohol test results: in short, Veh C § 23157 gives DUI arrestees "a right without a remedy." A defective advisement may, however, negate the usual sanctions for refusing to submit to chemical testing.
A commonly encountered situation occurs when the arresting officer fails to give an arrestee a choice of three tests, as required by Veh C § 23612. ("The person has the choice of whether the tests shall be of his or her blood, breath, or urine, and the officer shall advise the person that he or she has that choice.") Many officers find it too time-consuming to arrange for a blood sample to be withdrawn. The breath instrument, however, is located in the police station, is clean and easy to administer, and gives an instant result to facilitate the arrest and booking decision. Rather than advise the individual that he or she has such a choice, therefore, the officer finds it much more convenient to simply tell the suspect that he or she must take a breath test, omitting any mention of alternatives.
Unfortunately, even this obvious denial of a right specifically granted by statute does not constitute grounds for suppression of the test results. [People v. Brannon, 32 Cal.App.3d 971, 108 Cal.Rptr. 620 (5th Dist.1973)]. However, on cross-examination at trial, defense attorneys should be permitted to bring out the officer's noncompliance with the implied consent statute. This can serve to cast doubt on whether the officer complied with such other regulations and procedures as demonstrating the field sobriety tests or properly administering the breath test.