By Esha Kher
SACRAMENTO, CA – In a motion to suppress a roadside breathalyzer test, Sacramento County Superior Court Judge Stephen Acquisto here Wednesday navigated the line between giving actual consent and simply acquiescing to an exertion of authority by a law enforcement officer.
In the end, the judge granted the suppression motion, finding that the peace officer failed to clearly relay the critical admonishment that defendant David Orona has the right to refuse to take the breathalyzer test.
The motion of suppression was for the preliminary alcohol screening given to defendant David Orona by California Highway Patrol peace Officer Scott Starkey in the DUI investigation following a traffic collision involving Orona.
And, over the course of the cross-examination, Starkey revealed that the admonitions of the PAS test included no clear indication to the defendant that the test was voluntary. 
While Starkey said he told Orona that the test is required by law, this elaboration never indicated that it was voluntary.
The cross-examination by Attorney Michael Tobo also revealed discrepancies in Officer Starkey’s administering of the eight-point test. Starkey consistently said he didn’t remember details about the admonition, and he guessed about the timing and length between tests.
The prosecution has the burden of establishing it was a voluntary test and Deputy District Attorney Patrick Brady argued that statutes 23812 and 23614 of the Vehicle Code and case law around consent have not granted motions of suppression when implied consent by verbatim is present, regardless of explicitly stating it.
Judge Acquisto, however, said that statutes 23612 and 23614 are not determinative in and of themselves whether consent is voluntary, and they don’t set a bar that is higher than the Fourth Amendment standard.
The case law doesn’t say that an officer presenting a breath test who doesn’t assiduously adhere to every bit of information in those two statutes automatically renders consent as involuntary or defective.
What case law does say, said the judge, is that the Fourth Amendment applies and courts must look at the totality of the circumstances in determining whether the consent was voluntary.
Failing to strictly adhere to the advisement requirements in the statutes is not a basis to grant a suppression motion, apparently, and the judge held that he must look at the totality of circumstances to determine whether people have shown that alleged consent by defendant was voluntarily given.
Based on that, Judge Acquisto found that consent was not voluntarily given and there was a violation of the Fourth Amendment. He then granted the motion to suppress the breathalyzer test.
The defendant still faces driving without a license and driving without insurance charges.
Esha Kher is an undergraduate student at UC Davis studying Political Science and Computer Science hoping to pursue a career in corporate law. She is passionate about legal journalism and political advocacy that provokes new perspectives and sparks conversation among the public.
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