How Do I Challenge a Urine Test in California?
Consent is deemed given for chemical testing of a person’s blood or urine for the purpose of determining the drug content of the blood if the person is so arrested. Veh C §23612(a)(1)(B).
A Miranda warning is not required to be given to the driver before administering a blood, breath, or urine test to determine whether he or she is under the influence, because these tests do not elicit evidence of a testimonial or communicative nature. Pennsylvania v Muniz (1990) 496 US 582, 600–605, 110 S Ct 2638, 110 L Ed 2d 528 (statements that driver makes in response to test are admissible without Miranda warning because questioning attendant to legitimate police procedures is not “interrogation” within meaning of Miranda).
An essential prerequisite for the application of the implied consent law is a lawful arrest for driving under the influence. Music v Department of Motor Vehicles (1990) 221 CA3d 841, 847, 270 CR 692. When the defendant’s arrest is not lawful, the implied consent law and any penalties for not complying with that law, e.g., a defendant’s refusal to submit to a blood-alcohol test, may not be applied to the defendant. 221 CA3d at 851.
The officer must advise a person arrested for driving under the influence of alcohol that he or she has a choice of a blood or breath test. If the person is incapable of completing the chosen test, he or she must submit to the remaining test. Veh C §23612(a)(2)(A). If neither a blood or
breath test is available, the arrested person is deemed to have consented to and must submit to a urine test. Veh C §23612(a)(1)(A), (2)(A), (d)(2).
A person given a urine test must be afforded privacy that will ensure the accuracy of the specimen while maintaining the person’s dignity. Veh C §23158(i). However, to obtain an approved urine sample, the person must initially void his or her bladder in the administering officer’s presence. 17 Cal Code Reg §1219.2(a). This first sample is not the approved sample and need not be retained. 17 Cal Code Reg §1219.2(a). At least 20 minutes after the first sample is given, the person must give a second sample, which is the approved sample. 17 Cal Code Reg §1219.2(a). Failure to give a second sample is considered a failure to complete the test. Miles v Alexis (1981) 118 CA3d 555, 560, 173 CR 473. The sample must be kept in a container with a preservative, and whatever remains after the test must be retained for one year after the date of collection and made available to the defendant at his or her request for
additional testing. 17 Cal Code Reg §1219.2(b), (c).
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