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People v. Marquez8/5/2004
r the trial court's later instruction [FN2] that the jury could consider the failure to take a urine test in deciding guilt or innocence or the prosecutor's related argument. [FN3] We agree the issue posited on appeal has been forfeited because defendant never asserted a due process ground. (Evid.Code, § 353, subd. (a); People v. Burgener (2003) 29 Cal.4th 833, 889 [waiver of alleged federal due process right]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20 [the defendant's federal constitutional due process, fair trial, reliable guilt determination claims concerning the admissibility of a videotape waived in a capital case when they were not interposed in the trial court].) Further, we agree with the Attorney General that the due process issue was forfeited when no due process objection was reiterated when collectively: testimony was received on defendant's refusal to take a urine test; the deputy district attorney argued the issue to the jury; and the trial court announced its intention to instruct the jury on the issue. (People v. Boyer (1989) 48 Cal.3d 247, 270, fn. 13, overruled in part in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3; see People v. Mattson (1990) 50 Cal.3d 826, 849-850.)
FN2. The jury was instructed as follows: "If you find the defendant was offered and refused a urine 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 light of all other proved facts in deciding whether 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."
FN3. The prosecutor argued that an individual has a right to choose to submit to a chemical test or choose not to do so. The prosecutor continued: "The defense is reading into this and saying he has a right to choose a blood test and if you don't give him the blood test he's not
guilty. It doesn't say that anywhere in here.... The deputy told [defendant] the blood test [was] not available to him. You have a right to submit to a urine test. The urine test and blood test are used, both the same. Otherwise you would have heard evidence to that. Both the same. Both equal. [ ] If [defendant] felt that he didn't have [phencyclidine] in his system, he submits to a urine test and it shows that."
Nonetheless, there is no merit to defendant's due process argument. Section 23612 (formerly section 23157), provides in pertinent part: "(a)(1)(A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies. [ ] ... [ ] (d)(2) If a blood or breath test is not available under subparagraph (A) of paragraph (1) of subdivision (a) ... the person shall submit to the remaining test in order to determine the percent, by weight, of alcohol in the person's blood. If both the blood and breath tests are unavailable, the person shall be deemed to have given his or her consent to chemical testing of his or her urine and shall submit to a urine test." Defendant's proposed remedy of suppressing the evidence of his refusal to take the urine test exceeds the statutory provisions of section 23612. We do not have the authority to exceed the provisions deemed appropriate by the Le
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