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People v. Marquez8/5/2004
gislature.
*4 In the analogous case of People v. Brannon (1973) 32 Cal.App.3d 971, 977-978, our colleagues in the Court of Appeal for the Fifth Appellate District held that a court cannot add a provision to legislation to make the results of a chemical test inadmissible when a defendant is not informed of his other choices amongst the three tests. The Brannon court held, "To do so would not be interpreting the legislative intent but would be a gross example of judicial legislation in contravention of the legislative intent logically implied from the rejection by the Legislature of an identical provision.... [ ] ... [ ] The question ... of whether it would be good public policy to require ... evidence [of test results taken in violation of the implied consent law] to be excluded in drunk driving cases is one for the Legislature and not the courts." (Ibid.)
In People v. Superior Court (Maria) (1992) 11 Cal.App.4th 134, 142-144, our colleagues in the Court of Appeal for the Third Appellate District held, "Vehicle Code Section § 23157 is silent regarding a remedy for a violation thereof." In Maria, the defendant was informed that he had the choice of taking a blood, breath, or urine test. However, when the defendant chose a urine test, he was informed that the jail's supply of specimen bottles was exhausted. As a result, the defendant was offered one of the two remaining chemical tests. The defendant refused to submit to either a blood or breath test. The trial court dismissed the charges based on the law enforcement's failure to provide the requested test. In a mandate petition, the prosecution argued that dismissal was an inappropriate remedy for failing to administer the test of choice. The prosecutor further argued that no constitutional error occurred. The Maria court agreed that no constitutional violation resulted. (People v. Superior Court (Maria), supra, 11 Cal.App.4th at p. 142; see also Quintana v. Municipal Court (1987) 192 Cal.App.3d 361, 368 ["The enhancement of the penalty for driving under the influence where a test has been refused does not violate constitutional principles of substantive due process"]; People v. Municipal Court (Gonzales) (1982) 137 Cal.App.3d 114, 119 ["The admission of the 'refusal' [to submit to a chemical test] does not infringe on [defendant's] constitutional rights, and the Legislature has not provided for the 'refusal's' exclusion absent the advisement [that it may be properly admitted as evidence]"].) The Maria court further held: "Vehicle Code section 23157 itself is silent regarding a remedy for a violation thereof.... [C]ases have also consistently declined to sanction the remedy of dismissal of criminal charges in the absence of a constitutional violation, since dismissal would not advance the statute's purposes." (People v. Superior Court (Maria), supra, at p. 144; People v. Trotman (1989) 214 Cal.App.3d 430, 437; People v. Ryan (1981) 116 Cal.App.3d 168, 182; Brown v. Municipal Court (1978) 86 Cal.App.3d 357, 365; People v. Puccinelli (1976) 63 Cal.App.3d 742, 745-746; see also People v. Ford (1992) 4 Cal.App.4th 32, [results of blood test properly admitted despite defendant's claim that the sample was not taken in a medically approved manner because former section 23157 does not contain an exclusionary provision].) The same is true in this case. Because section 23612 does not provide for suppression of testimony concerning defendant's refusal to take the urine test. Defendant's arguments to the contrary are without merit.
*5 Putting entirely aside the question of the scope of the statute, no due process violation occurred when defendant's refusal to take the test was admitted into evidence. In People v. Seaton (2001) 26 Cal.4th 598, 656, the California Supreme Court held that the po
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