1

Filed 7/25/24 (unmodified opinion attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

HAADI BOLOURCHI,

Defendant and Appellant.

A167289

(Marin County 

Super. Ct. No. SC207297A)

ORDER MODIFYING OPINION; 

NO CHANGE IN JUDGMENT

BY THE COURT*:

The court orders that the opinion filed in this appeal on June 28, 2024, 

be modified as follows:

1. On page 12, delete the second sentence in footnote 5:

After the officer arrested him, the record only shows the officer 

asked him to take a blood test, even though arguably he should 

have offered the alternative of a post-arrest breath test (§ 23612, 

subd. (a)(2)(B)) before asking for a blood test if Bolourchi chose 

breath testing.

Insert in place of the deleted sentence indicated above, continuing 

within the same paragraph, the following substitute language:

* Brown, P. J., Streeter, J., Hite, J. (Judge of the Superior Court of 

California, City and County of San Francisco, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.)
2

After Bolourchi’s arrest, the record only shows Officer Finerty 

asking him to take a blood test, even though an arrestee in those 

circumstances should be given the alternative of a post-arrest

breath test (§ 23612, subd. (a)(2)(B)) before a blood test is 

requested if the choice is breath testing.

2. On page 13, at the end of the first paragraph in part II.B, change the 

last sentence to end at “. . . United States Supreme Court,” delete the 

word “that” and add the language “These cases” to start a new 

sentence, so that it reads:

To evaluate this contention, we begin with a background 

discussion of a series of Fourth Amendment cases from the 

United States Supreme Court. These cases, together, enunciate

the applicable law.

3. On page 14, in the first sentence of the first full paragraph, insert the 

word “governing” before “law,” delete the phrase “of this state,” insert

the phrase “as we read it in California” after the word “decades,” and 

delete the word “California” before the word “courts,” so the sentence 

reads:

There the governing law stood for decades as we read it in 

California, with courts uniformly holding the Fourth Amendment 

permits unconsented, warrantless blood draws in DUI 

investigations under the exigent circumstances exception 

recognized in Schmerber.

4. On page 14, in the last sentence of the second full paragraph, add the 

word “her” in place of the word “the” before “opinion,” and add the 

phrase “in McNeely” after “opinion,” so the sentence reads:

In addition, while Justice Sotomayor’s opinion for the five justice 

McNeely majority rejects the idea of per se exigency, she failed to 

garner a fifth vote for section III of her opinion in McNeely

discussing an issue relevant to this case—the power of the states 

to use implied consent laws to enforce their DUI laws consonant 

with the Fourth Amendment.

5. On page 17, at the end of the paragraph that begins on page 16 and 

that currently ends with the citation “(Birchfield, at pp. 476–477.)” add 
3

the following sentence after that citation, so the new concluding 

sentence of the paragraph reads:

Thus, recognizing that blood draws are more invasive of a 

defendant’s privacy and personal dignity (id. at pp. 461–464), the 

court drew a sharp distinction between blood and breath tests.

6. On page 17, in the first full paragraph, delete the first sentence, which 

reads:

The Supreme Court then applied these legal conclusions to the 

three cases before it.

Insert in place of the deleted sentence indicated above the following 

substitute language:

This distinction is evident in the court’s analysis and disposition 

of each of the three cases presented.

7. On page 18, in the last paragraph, in the sentence that begins “When 

the Mitchell and McNeely pluralities . . .” add the parenthetical 

“(Roberts, C. J., Alito, J., and Kavanaugh, J., in the Mitchell plurality; 

and Sotomayor, J., and Kagan, J., in the McNeely plurality)” after “. . .

United States Supreme Court” so the sentence reads:

When the Mitchell and McNeely pluralities and the Birchfield

majority opinion are read together, five current justices on the 

United States Supreme Court (Roberts, C. J., Alito, J., and 

Kavanaugh, J., in the Mitchell plurality; and Sotomayor, J., and 

Kagan, J., in the McNeely plurality) have joined an opinion

acknowledging that—short of criminal conviction—states may 

use implied consent laws to impose a variety of adverse 

consequences on DUI arrestees who refuse blood testing.

8. On page 23, delete the first sentence of the last paragraph:

Apart from the statute, we also find no constitutional error.

Insert in place of the deleted sentence indicated above the following 

substitute language:
4

We find neither statutory nor constitutional error in the giving of 

the CALCRIM No. 2130 instruction.

9. On page 23, in the last sentence of the last paragraph that begins “The 

defendant . . .” and continues on page 24, delete the word “also” so the 

sentence reads:

The defendant in Sudduth relied on Griffin v. California (1965) 

380 U.S. 609, the United States Supreme Court’s landmark case 

prohibiting comment on a criminal defendant’s failure to testify. 

10. On page 29, in the last paragraph, after the first sentence that ends 

“. . . those in Espinoza” add a new sentence “There is no breath-testing 

issue here.” so the first two sentences of the paragraph read: 

Here, of course, the facts differ from those in Espinoza. There is 

no breath-testing issue in this case.

11. On page 29, in the last paragraph, in the sentence that begins 

“Espinoza assumed, . . .” change the word “this” to “that” so the 

sentence reads:

Espinoza assumed, without deciding, that under Birchfield (and 

despite the qualifying language used in that case), “civil 

penalties” (such as a license suspension) could not be imposed in 

that circumstance.

12. On page 29, in the last paragraph, in the sentence that begins “The 

present case . . .” after the phrase “similar issue” insert the phrase “to 

the “civil penalties” scenario referenced in Espinoza” and after 

“criminal trial” add the phrase “, not license suspension” so the 

sentence reads:

The present case raises a similar issue to the “civil penalties” 

scenario referenced in Espinoza, though here we are dealing with 

the imposition of “evidentiary consequences” (Birchfield, supra, 

579 U.S. at p. 477) (i.e., the instruction allowing an inference of 

consciousness of guilt) attending Bolourchi’s refusal to submit to 

a warrantless blood test in a criminal trial, not license 

suspension.
5

13. On page 30, at the end of the second paragraph (which currently ends 

with the citation “(Birchfield, at p. 477.)”), add the new sentence “This 

case falls on the constitutionally permissible end of that continuum.” so 

the last two sentences of the paragraph read:

Applying a Fourth Amendment reasonableness standard, the 

court concluded that “motorists cannot be deemed to have 

consented to submit to a blood test on pain of committing a 

criminal offense.” (Birchfield, at p. 477.) This case falls on the 

constitutionally permissible end of that continuum. 

14. On pages 30 and 31, delete in its entirety the paragraph that begins on 

page 30 with the phrase “In our view, . . .” and ends on page 31, and 

replace it with the following paragraph:

In our view, the Birchfield rule against criminalizing blood test 

refusals does not mean the imposition of lesser consequences is 

constitutionally unreasonable. In our evaluation of the state of 

the law today, we view it as very significant that Birchfield

upgraded the McNeely plurality’s discussion of implied consent 

laws by embracing it in a full opinion of the court. Echoing the 

McNeely plurality, the Birchfield court stressed that, “The States 

and the Federal Government have a ‘paramount interest . . . in 

preserving the safety of . . . public highways.’ ” (Birchfield, supra, 

579 U.S. at p. 464.) Implied consent laws, which are designed to 

discourage drivers from driving while impaired (and to encourage 

cooperation with testing that aims to determine if a driver is

impaired), “serve a very important function.” (Id. at p. 466.) 

Mindful of how the law has evolved on this point, we decline to 

extend Birchfield to prohibit the imposition of an evidentiary 

consequence for Bolourchi’s refusal to submit to a blood test. To 

the extent Espinoza can be read to support a contrary analysis, 

we respectfully disagree with it. 

15. On page 32, in the last full paragraph, delete the following sentence:

There is a throughline here.

Insert in place of the deleted sentence indicated above, continuing 

within the same paragraph, the following substitute language:
6

We acknowledge doing some reading of tea leaves in the 

pertinent United States Supreme Court opinions, but there is a 

throughline here.

16. On page 32, in the last sentence of the last full paragraph, after the 

phrase “see in all of”, change the word “the” to “these”; change the 

phrase “United States Supreme Court’s Fourth Amendment opinions 

addressing implied consent laws” to “opinions”; and change the phrase 

“supports this conclusion” to “supports our conclusion” so the sentence 

reads:

The acknowledged validity of imposing adverse consequences on 

DUI testing refusers we see in all of these opinions, first in the 

McNeely plurality opinion, again in Birchfield, and again in the 

Mitchell plurality opinion—so long as the consequence is not a 

criminal conviction—supports our conclusion.

The modifications effect no change in the judgment.

Date: _____________________ _____________________ P.J.
People v. Bolourchi – A167289

Trial Court: Superior Court of California, County of Marin 

Trial Judge: Hon. Beth S. Jordan 

Counsel: Heather E. Shallenberger, under appointment by the Court 

of Appeal, for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Jeffrey M. Laurence, Senior 

Assistant Attorney General, Bridget Billeter, Supervising 

Deputy Attorney General, and Julia Y. Je, Deputy Attorney 

General, for Plaintiff and Respondent.
1

Filed 6/28/24 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

HAADI BOLOURCHI,

Defendant and Appellant.

A167289

(Marin County 

Super. Ct. No. SC207297A)

Under Vehicle Code1 section 23612, subdivision (a)(1)(B), “A person 

who drives a motor vehicle is deemed to have given his or her consent to 

chemical testing of his or her blood for the purpose of determining the drug 

content of his or her blood, if lawfully arrested for” driving while under the 

influence of a drug in violation of section 23152, subdivision (f).2 The 

question presented here is this: If, following a valid arrest for such an 

offense, a motorist refuses to cooperate in the taking of a blood test unless a 

warrant is first obtained, may the jury at the motorist’s ensuing DUI trial 

draw an adverse inference of consciousness of guilt based on that refusal? 

Our answer is yes. In this case, a jury convicted defendant Haadi 

Bolourchi of a DUI offense in violation of section 23152, subdivision (f), and 

1 Undesignated statutory references are to the Vehicle Code.

2 We will sometimes use “DUI” to refer to driving under the influence of 

alcohol, a drug, or a combination. 
2

bribing an executive officer. The trial court suspended imposition of 

sentence, placed Bolourchi on three years’ probation, and ordered a jail term 

of 180 days. On appeal, Bolourchi contends the DUI conviction should be 

reversed. He argues the court erred by instructing the jury with CALCRIM 

No. 2130, an instruction that states a defendant’s refusal to submit to a 

chemical test as required by California’s implied consent statute (§ 23612) 

may show consciousness of guilt. 

Seeing no instructional error, we affirm.3 

I. BACKGROUND

A. The Charges

An information charged Bolourchi with driving under the influence of a 

drug with priors (§§ 23152, subd. (f), 23550, subd. (a); count 1) and bribing an 

executive officer (Pen. Code, § 67; count 2). Among the sentencing 

enhancement allegations for count 1 was a charge that Bolourchi willfully 

refused a peace officer’s request to submit to a chemical test and willfully 

failed to complete that test. (§§ 23612, 23577, 23578.) 

B. The Evidence Presented at Trial

Officer Kevin Finerty testified as follows.

In the early morning hours of September 22, 2018, while on patrol in 

San Rafael, Officer Finerty noticed a black Dodge Challenger with tinted 

front windows, obscuring the driver. Loud noises were emitting from the 

car’s rear exhaust. Both conditions violate the Vehicle Code. After the car 

rolled slowly over the crosswalk and into the middle of an intersection 

against a red light, Officer Finerty pulled behind it and activated his 

emergency lights. When the car failed to stop, he activated his siren. 

3 Because we find no instructional error, we need not address the 

parties’ arguments as to whether the claimed error was prejudicial. 
3

With Officer Finerty trailing close behind, the car proceeded 500 feet 

before pulling into the parking lot of a 7-Eleven store. The driver, Haadi 

Bolourchi, got out and began walking into the store, seemingly oblivious to 

the fact a patrol car with lights and siren activated had been behind him 

before he stopped. Officer Finerty directed Bolourchi to get back into his car, 

which Bolourchi refused to do, stating he did not consent to a search of the 

car. The officer found that odd, since he had not asked permission to search 

anything. 

During the ensuing interactions between Officer Finerty and Bolourchi, 

Bolourchi exhibited a number of suspicious traits and behaviors suggesting 

paranoia and other indications of intoxication. His eyes were red and watery. 

His speaking tone was low and his speech was slow. And he said he was 

unaware Officer Finerty had pulled behind him, despite the lights and sirens 

immediately behind him before he pulled into the 7-Eleven lot. 

Bolourchi gave a confused response to a simple question about where 

he was driving from and where he was going. He was unsteady on his feet. 

He failed to comply with multiple directions to sit on the ground, and had to 

be physically guided into a sitting position. He repeatedly asked the same 

questions about why he had been stopped even after being told he was 

suspected of Vehicle Code violations. 

Faced with these various indications of intoxication, Officer Finerty 

conducted several field sobriety tests, including the horizontal gaze 

nystagmus test, the walk and turn test, the one-leg stand test, and the finger

to nose test. Bolourchi’s poor performance on a number of these tests 
4

suggested that he was under the influence of drugs or alcohol, so Officer 

Finerty administered a preliminary alcohol screening (PAS) test.4 

When the PAS results showed no evidence of alcohol use, Officer 

Finerty began to focus on possible drug intoxication. Bolourchi admitted to 

smoking cannabis the day before, and indicated he normally kept his 

cannabis in the trunk of his car. Officer Finerty replied that he was 

concerned whether Bolourchi had been driving while under the influence of 

cannabis, not where he normally stored it. “ ‘Yeah,’ ” said Bolourchi, 

seemingly in agreement with the officer’s stated concern. 

At that point, Officer Finerty arrested Bolourchi and placed him in the 

back of his patrol car. The officer then conducted an inventory search of 

Bolourchi’s car. There were multiple packets of Swisher Sweets tobacco 

cigars in the car. According to Officer Finerty, people often replace the 

tobacco in these cigars with cannabis and smoke them. Also in the car was 

an empty pill container for the prescription drug Alprazolam. No cannabis 

was found on Bolourchi or in his car. 

After driving Bolourchi to the police station, Officer Finerty told 

Bolourchi he was going to conduct a drug recognition evaluation (DRE). 

Bolourchi was still confused as to why he was there. The officer told 

Bolourchi that he believed he was under the influence of drugs, either 

prescription or nonprescription. Although Bolourchi adamantly denied that 

he was under the influence of prescription drugs, he did not deny driving 

under the influence of cannabis. 

4 “A preliminary alcohol screening test that indicates the presence or 

concentration of alcohol based on a breath sample in order to establish 

reasonable cause to believe the person was driving a vehicle in violation of 

Section 23140, 23152, or 23153 is a field sobriety test and may be used by an 

officer as a further investigative tool.” (§ 23612, subd. (h).)
5

In conducting the DRE, Officer Finerty checked Bolourchi’s vital signs. 

Bolourchi’s blood pressure and body temperature were normal. His pulse 

was elevated, which is consistent with cannabis use. Bolourchi’s pupils were 

normal in varying light. Officer Finerty testified it is possible for an 

individual to be under the influence of marijuana and still have normal blood 

pressure, body temperature, and pupil size. 

Officer Finerty also administered the Modified Romberg Test to test 

Bolourchi’s internal clock. During an elapsed period of 35 seconds, Bolourchi 

estimated 30 seconds had passed. The officer observed that the condition of 

Bolourchi’s tongue was consistent with dry mouth and cannabis use and with 

smoking a cigar or a glass pipe. Bolourchi told Officer Finerty that on 

September 21, he had smoked approximately one gram of cannabis at 8:00 

a.m. and again at 10:00 a.m., and he had taken some Alprazolam at 3:00 p.m. 

Based on Bolourchi’s physical condition, behavior, and performance on 

the field sobriety tests, Officer Finerty formed the opinion that Bolourchi was 

under the influence of cannabis and asked Bolourchi if he would consent to a 

blood test. Bolourchi agreed to have a blood sample taken but wanted it done 

at the jail and not at the police department. 

Officer Finerty then drove Bolourchi to the county jail. But at the jail, 

Bolourchi stated that he did not want to have his blood drawn and wanted 

the officer to get a warrant for the blood test. Bolourchi also made 

statements to the effect that he wanted the officer to “work for [his] money.” 

At this point, Officer Finerty drove Bolourchi back to the police department 

to obtain a warrant. 

During the drive back to the police department, Bolourchi made a 

statement to the effect of “ ‘You can’t get any tips?’ ” The officer was confused 

by Bolourchi’s remark. Bolourchi then told the officer that he would pay him 
6

$1,000 if he let him go. When Officer Finerty asked Bolourchi to confirm 

what he was saying, Bolourchi repeated that he would give the officer $1,000 

if he let him go. 

Bolourchi explained that the tow of his vehicle was only going to be 

$100 and that he would be paying the officer 10 times that amount. Officer 

Finerty did not think Bolourchi was joking, because “[h]e wasn’t laughing. 

He and I weren’t laughing back and forth or anything.” Although Bolourchi 

did not have cash on his person, the officer believed that he was making a 

serious attempt to bribe him with $1,000. 

Officer Finerty obtained a warrant for the blood test. The blood draw 

was performed at 5:57 a.m. The sample was sent to the Department of 

Justice for testing. Criminalist Cathralynn Cook testified about the results 

of that testing. Cook testified as an expert on the procedures and operations 

of the Department of Justice laboratory, blood analysis for the presence of 

drugs, and the effect of drugs on the human body and a person’s ability to 

operate a vehicle. 

According to Cook, Alprazolam is a central nervous system depressant 

and can cause impairment by slowing that system down. Common symptoms 

include lowered heart rate, pulse rate, and body temperature. It can also 

cause sleepiness, confusion, muscle relaxation, a slowed perception of time, 

and difficulties with spatial awareness. Both Alprazolam and THC (the 

active ingredient in marijuana) can affect a person’s ability to do more than 

one task at a time, disrupting the divided-attention processing in the brain. 

Driving is a complex divided-attention task. The test of Bolourchi’s blood 

sample showed “[t]he presence of Alprazolam,” and “2.2-nanograms per 

milliliter of Delta 9-THC as well as Hydroxy-THC and Carboxy-THC.” Cook 

was confident that the test results were reliable and trustworthy. 
7

Cook described the additive effects when a person takes both THC and 

Alprazolam. Both substances can cause physical coordination issues, lowered 

heart rate, lowered blood pressure, sleepiness, relaxation, and confusion. The 

symptoms may be more pronounced if a person is using both substances. A 

person driving under the influence of THC may have difficulty modulating 

speed in relation to other objects, difficulty with lane positioning, weaving, 

not turning appropriately, and slowed reaction time. A person using 

Alprazolam may drive more slowly and have weaving and coordination 

issues. 

The prosecutor posed a hypothetical involving a person whose 

performance on field sobriety tests paralleled Bolourchi’s performance. Cook 

opined that the person was too impaired to drive safely. The prosecutor later 

added facts to the hypothetical paralleling Bolourchi’s driving behavior, his 

actions prior to being contacted by Officer Finerty, his admissions of having 

taken Alprazolam and smoked marijuana, and the results of the DRE. Cook 

again opined the person was too impaired to drive safely. 

On cross-examination, Cook confirmed that for the Alprazolam detected 

in Bolourchi’s system, no concentration was determined. But she stated that 

her opinion about impairment was based on the totality of the circumstances 

and not solely on the level of the drug in the system. Cook also stated that 

the level of a drug in a person’s system does not decrease consistently over 

time like alcohol. Cook agreed that a person who regularly used marijuana 

or Alprazolam might not be as impaired as a new user, but stated she would 

expect the tolerant user to perform normally on field sobriety tests, have an 

ordinary driving pattern, and have no symptoms of impairment. 

Bolourchi did not testify, but he did call his own expert, Dr. Eugene 

Schoenfeld. Schoenfeld pointed out that, for Alprazolam, the blood test 
8

results showed “detected,” with no measured level shown, and that the 

detected level of THC simply indicated Bolourchi had smoked marijuana 

sometime in the past. According to Dr. Schoenfeld, these results were 

consistent with Bolourchi’s statements to Officer Finerty that he took 

Alprazolam and consumed marijuana the previous day, not that he was 

impaired when Officer Finerty encountered him.

Dr. Schoenfeld saw nothing in Officer Finerty’s reported observations of 

Bolourchi or in the testing results to indicate impairment. He did not 

specifically address Bolourchi’s bad driving or his evident confusion and 

disorientation in the 7-Eleven parking lot. As for Bolourchi’s poor 

performance on the field sobriety tests, Dr. Schoenfeld said that may be 

explained by simple nervousness, not impairment.

In closing argument, defense counsel denied that Bolourchi had any 

corrupt intent in offering money to Officer Finerty and said his statements 

about that, if true, were nothing more than “circumstantial evidence that 

Haadi Bolourchi is a jackass.” 

C. The CALCRIM No. 2130 Instruction and Dismissal of the Section 

23577 Allegation

Prior to trial, the prosecutor moved in limine to give a proposed jury 

instruction under CALCRIM No. 2130 that read as follows:

“The law requires that any driver who has been lawfully arrested 

submit to a chemical test at the request of a peace officer who has reasonable 

cause to believe that the person arrested was driving under the influence. [¶] 

If the defendant refused to submit to such a test after a peace officer asked 

him to do so and explained the test’s nature to the defendant, then the 

defendant’s conduct may show that he was aware of his guilt. If you conclude 

that the defendant refused to submit to such a test, it is up to you to decide 
9

the meaning and importance of the refusal. However, evidence that the 

defendant refused to submit to a chemical test cannot prove guilt by itself.” 

Defense counsel objected to this instruction, arguing there was no 

“refusal” because “[t]hey have a blood test.” The prosecutor argued Bolourchi 

was “stringing it out”—first by insisting that the test occur at the jail and 

then declining to test without a warrant—which “could be indicative of a 

guilty state of mind.” Noting Bolourchi did not submit to the test without a 

warrant, the court granted the prosecutor’s motion and stated it would give 

the instruction. 

In a mid-trial conference to discuss jury instructions, defense counsel 

stated he did not agree with the inclusion of CALCRIM No. 2130. Counsel 

stated Bolourchi “did, to his knowledge and ability, submit. He gave a 

[breathalyzer] test. He went back and forth and eventually did submit to a 

blood test.” The prosecutor responded that Bolourchi had refused and it was 

necessary to get a warrant. The court concluded that it would give the 

instruction and the parties could make their arguments to the jury. Defense 

counsel did not object to the wording of the instruction or request any 

modification to the instruction. 

In a later discussion just before the court instructed the jury, defense 

counsel argued Bolourchi had not received a proper explanation about the 

blood test, so his conduct did not amount to a refusal that would indicate 

consciousness of guilt. After hearing argument, the court stated it was 

satisfied that the “nature of the test was explained,” and it would give the 

instruction, with counsel free to make their respective arguments to the jury. 

The prosecutor relied on the CALCRIM No. 2130 instruction in closing 

argument as one of a number of factors the jury could use to find Bolourchi 

was driving while under the influence of a drug. “The defendant didn’t want 
10

to take [a blood] test because he knew that it would show he was intoxicated. 

You can use that as a factor in deciding whether or not the defendant was 

intoxicated. He refused to take the test. [You c]an use that as evidence of 

the fact that he knew he was intoxicated.” 

During trial, the court granted the prosecution’s motion to dismiss the 

enhancement allegation under section 23577 that Bolourchi refused a 

chemical test. 

D. Guilt Verdict, Sentence and Appeal

The jury found Bolourchi guilty on both counts 1 and 2 and at a 

subsequent bifurcated trial the court found sentencing allegations that 

Bolourchi suffered three prior DUI convictions to be true. At sentencing, the 

court suspended imposition of sentence, placed Bolourchi on three years’ 

probation, and ordered that he serve 180 days in county jail. 

Bolourchi timely appealed. 

II. DISCUSSION

At the outset, it is important to be clear about exactly what Bolourchi is 

now arguing. In the trial court, he took the position that his lack of 

cooperation in submitting to a blood test, factually, was not a refusal to test 

because he ultimately allowed his blood to be taken. But that position is 

unsustainable. It is well established that, to comply with the consent law, a 

“ ‘driver should clearly and unambiguously manifest the consent required by 

the law. Consent which is not clear and unambiguous may be deemed a 

refusal.’ ” (Garcia v. Department of Motor Vehicles (2010) 185 Cal.App.4th 

73, 82.) 

On appeal, Bolourchi continues to claim that consent is a question of 

fact, but the focus of his argument has shifted. He now argues that, legally, 

his lack of cooperation in a blood draw cannot amount to a refusal under the 

implied consent law, at least not a refusal for which any adverse 
11

consequences may attach under CALCRIM No. 2130. Specifically, Bolourchi 

contends he had a constitutional right under Missouri v. McNeely (2013) 

569 U.S. 141 (McNeely) to demand that police obtain a warrant before he 

submitted to a blood draw, so his assertion of that right should not be deemed 

a refusal to test. 

As an initial matter, the Attorney General argues Bolourchi forfeited 

this legal attack on the CALCRIM No. 2130 instruction by failing to object to 

it on precisely the same grounds he now urges on appeal. In the trial court, 

Bolourchi contended there was no refusal because he eventually submitted to 

a blood draw, while here he argues there can be no refusal when an arrestee 

claims he has a Fourth Amendment right to be free from a coerced blood 

draw absent a warrant. 

The issue Bolourchi raises is a matter of first impression in California. 

Without determining whether his objection below was sufficient to avoid 

forfeiture, we will review the merits of his claim and address whether the 

instruction affected his substantial rights. (Pen. Code, § 1259; People v. 

Jimenez (2016) 246 Cal.App.4th 726, 730.) For the reasons discussed below, 

we conclude the court did not err by giving the challenged instruction. 

A. The Implied Consent Law

The implied consent law states that a driver of a motor vehicle is 

“deemed to have given his or her consent” to blood or breath testing for 

alcohol, and to blood testing for drugs, upon a lawful arrest for DUI. 

(§ 23612, subd. (a)(1)(A) & (B).) Specifically, when a person is lawfully 

arrested for driving under the influence of alcohol, the arresting officer is to 

give the person the choice of whether to take a blood test or a breath test. 

(§ 23612, subd. (a)(2)(A).) If the arrest is for driving under the influence of a 

drug or the combined influence of alcohol and a drug, the officer initially is to 

offer the person the choice of a blood or breath test (id., subd. (a)(2)(B)), but a 
12

person who chooses a breath test may also be asked to take a blood test “if 

the officer has reasonable cause to believe that the person was driving under 

the influence of a drug or the combined influence of an alcoholic beverage and 

a drug and if the officer has reasonable cause to believe that a blood test will 

reveal evidence of the person being under the influence” (id., subd. (a)(2)(C)).5 

In addition to blood and breath testing, a driver is in some circumstances 

deemed to have consented to urine testing. (Id., subds. (a)(1)(B), (a)(2)(C), 

(d)(2).) 

An arresting officer must advise the driver that failure to submit to the 

required “breath or urine testing” will result in a fine and mandatory 

imprisonment if the person is convicted of DUI (§ 23612, subd. (a)(1)(D)),6 and 

that failure to submit to the required “breath, blood, or urine tests” will result 

5 Here, as noted, after the PAS test result showed Bolourchi had no 

alcohol in his blood, Officer Finerty suspected he had been driving while 

under the influence of a drug. After the officer arrested him, the record only 

shows the officer asked him to take a blood test, even though arguably he 

should have offered the alternative of a post-arrest breath test (§ 23612, 

subd. (a)(2)(B)) before asking for a blood test if Bolourchi chose breath 

testing. (Id., subd. (a)(2)(C) [“A person who chooses to submit to a breath test 

may also be requested to submit to a blood test if the officer has reasonable 

cause to believe that the person was driving under the influence of a drug . . .

and if the officer has reasonable cause to believe that a blood test will reveal 

evidence of the person being under the influence.”].) On appeal, Bolourchi 

does not argue that this possibly skipped step provides a basis for reversal; 

he challenges only the court’s instruction about his refusal when the officer 

asked him to take the blood test. 

6 Following the United States Supreme Court’s decision in Birchfield v. 

North Dakota (2016) 579 U.S. 438 (Birchfield) (a case we discuss below), the 

Legislature amended section 23612 and related statutes in 2018 to eliminate 

criminal penalties for a refusal to submit to a blood test. (Assem. Bill 

No. 2717 (2017–2018 Reg. Sess.) (Assem. Bill No. 2717), Stats. 2018, ch. 177, 

§§ 1–3; see §§ 23577–23578.) 
13

in the administrative suspension or revocation of driving privileges (ibid.). In 

addition, the officer must advise the person “that, in the event of refusal to 

submit to a test or tests, the refusal may be used against him or her in a 

court of law.” (Id., subd. (a)(4); see People v. Alvarez (2023) 98 Cal.App.5th 

531, 547 (Alvarez) [“In a subsequent prosecution for driving under the 

influence, the court may . . . admit into evidence a driver’s refusal to submit 

to such a test to show consciousness of guilt.”]; CALCRIM No. 2130.) 

B. Fourth Amendment Limits on Blood Tests

CALCRIM No. 2130—the instruction challenged here—states a 

defendant’s refusal to submit to a test required under the implied consent 

law “may show” the defendant “was aware of [his] guilt.” As noted above, 

Bolourchi contends the use of this instruction was improper because he had a 

constitutional right under McNeely, supra, 569 U.S. 141 to demand that 

police obtain a warrant before he submitted to a blood draw. To evaluate this 

contention, we begin with a background discussion of a series of Fourth 

Amendment cases from the United States Supreme Court that, together, 

enunciate the applicable law. 

We start in the mid-1960s with Schmerber v. California (1966) 384 U.S. 

757 (Schmerber). The case involved a forced blood draw from a DUI arrestee 

who lay hospitalized following an auto accident. (Id. at p. 758.) In light of 

delay caused by the need to investigate the accident, the police did not have 

time to procure a warrant and risked losing an accurate blood sample due to 

the gradual metabolization of any alcohol in the defendant’s blood. (Id. at 

pp. 770–771.) The high court recognized the dignity and privacy interests at 

stake with any forced intrusion beyond the body’s surface, but affirmed the 

resulting conviction on the ground the arresting officer “might reasonably 

have believed that he was confronted with an emergency, in which the delay 
14

necessary to obtain a warrant, under the circumstances, threatened ‘the 

destruction of evidence.’ ” (Id. at p. 770.) 

There the law of this state stood for decades, with California courts 

uniformly holding the Fourth Amendment permits unconsented, warrantless 

blood draws in DUI investigations under the exigent circumstances exception 

recognized in Schmerber. (See People v. Harris (2015) 234 Cal.App.4th 671, 

702.) But McNeely, decided in 2013, was a gamechanger. There, the high 

court held that the natural metabolization of alcohol in the bloodstream does 

not establish “a per se exigency” justifying an exception to the Fourth 

Amendment’s warrant requirement in all drunk-driving cases. (McNeely, 

supra, 569 U.S. at p. 145.) Instead, the court held, “exigency in this context 

must be determined case by case based on the totality of the circumstances.” 

(Ibid.)

McNeely is just as important for what it does decide as it is for what it 

does not decide. Exigency is only one of several recognized exceptions to the 

Fourth Amendment warrant requirement, and McNeely addresses only one of 

them—the exigency exception for emergency circumstances. (McNeely, 

supra, 569 U.S. at pp. 148–149.) In addition, while Justice Sotomayor’s 

opinion for the five justice McNeely majority rejects the idea of per se 

exigency, she failed to garner a fifth vote for section III of the opinion 

discussing an issue relevant to this case—the power of the states to use 

implied consent laws to enforce their DUI laws consonant with the Fourth 

Amendment.

In Section III, the McNeely plurality states: “States have a broad range 

of legal tools to enforce their drunk-driving laws and to secure BAC evidence 

without undertaking warrantless nonconsensual blood draws. For example, 

all 50 States have adopted implied consent laws that require motorists, as a 
15

condition of operating a motor vehicle within the State, to consent to BAC 

testing if they are arrested or otherwise detained on suspicion of a drunkdriving offense. [Citation.] Such laws impose significant consequences when 

a motorist withdraws consent; typically the motorist’s driver’s license is 

immediately suspended or revoked, and most States allow the motorist’s 

refusal to take a BAC test to be used as evidence against him in a subsequent 

criminal prosecution.”7 (McNeely, supra, 569 U.S. at pp. 160–161 (plur. opn. 

of Sotomayor, J.).) 

Three years after McNeely clarified Schmerber’s application of the 

exigent circumstances exception for warrantless searches in DUI cases, the 

Birchfield court added another new element to Fourth Amendment law 

governing those searches. Some of the other exceptions to the warrant 

requirement, unlike the exigent circumstances exception addressed in 

Schmerber and McNeely, apply categorically rather than on a totality of the 

circumstances, case-by-case basis. Birchfield not only involved one of these 

categorical exceptions—the search-incident-to-arrest exception—but directly 

addressed implied consent laws as well. 

The main issue in Birchfield was whether the Fourth Amendment 

limits the operation of state laws that impose penalties on drivers who refuse 

to undergo chemical testing required by implied consent laws. (Birchfield, 

7 Both the California Supreme Court and the United States Supreme 

Court have rejected Fifth Amendment challenges to the admission of 

evidence or the giving of jury instructions permitting juries to draw adverse 

inferences against DUI defendants for their refusal to consent to bloodalcohol tests. (See People v. Sudduth (1966) 65 Cal.2d 543, 546–547 

(Sudduth); South Dakota v. Neville (1983) 459 U.S. 553, 554, 564 (Neville).) 

Although we have no Fifth Amendment challenge in this case, we take these 

high court precedents as highly instructive in piecing together the applicable 

Fourth Amendment principles at issue here based on McNeely and Birchfield. 
16

supra, 579 U.S. at pp. 443–444.) While the “typical penalty for 

noncompliance” “[i]n the past” was “suspension or revocation of the motorist’s 

license,” the North Dakota and Minnesota laws at issue in Birchfield went 

“beyond that and [made] it a crime for a motorist to refuse to be tested after 

being lawfully arrested for driving while impaired.” (Id. at p. 444; see id. at 

pp. 449–450.) The court considered “whether such laws violate the Fourth 

Amendment’s prohibition against unreasonable searches.” (Id. at p. 444.) 

Before the court in Birchfield were three defendants in three separate 

cases. In one, Birchfield was convicted of a crime for refusing to take a blood 

test (Birchfield, supra, 579 U.S. at pp. 454, 451); in another, Bernard was 

convicted of criminal refusal to take a breath test (id. at pp. 452–453); and in 

the third, Beylund submitted to a blood test, but when his driver’s license 

was subsequently suspended in an administrative hearing, he argued his 

consent to the blood test was coerced because the arresting officer had 

warned him that refusing to consent would itself be a crime (id. at pp. 453–

454). The Supreme Court granted certiorari in all three “to decide whether 

motorists lawfully arrested for drunk driving may be convicted of a crime or 

otherwise penalized for refusing to take a warrantless test measuring the 

alcohol in their bloodstream.” (Id. at p. 454.) 

After concluding that the search-incident-to-arrest doctrine does not 

justify the warrantless taking of a blood sample, the Birchfield court rejected 

the states’ alternative argument that a DUI arrestee may be “deemed to have 

consented to submit to a blood test” in the face of threatened criminal 

penalties. (Birchfield, supra, 579 U.S. at p. 477.) “It is well established that 

a search is reasonable when the subject consents [citation], and that 

sometimes consent to a search need not be express but may be fairly inferred 

from context.” (Id. at p. 476.) “Our prior opinions,” said the court, “have 
17

referred approvingly to the general concept of implied-consent laws that 

impose civil penalties and evidentiary consequences on motorists who refuse 

to comply. See, e.g., McNeely, supra, at 160–161 (plurality opinion); Neville,

supra, at 560. Petitioners do not question the constitutionality of those laws, 

and nothing we say here should be read to cast doubt on them. [¶] It is 

another matter, however, for a State not only to insist upon an intrusive 

blood test, but also to impose criminal penalties on the refusal to submit to 

such a test. There must be a limit to the consequences to which motorists 

may be deemed to have consented by virtue of a decision to drive on public 

roads.” (Birchfield, at pp. 476–477.) 

The Supreme Court then applied these legal conclusions to the three 

cases before it. (Birchfield, supra, 579 U.S. at pp. 477–478.) The court held 

Birchfield could not be forced to submit to a warrantless blood test incident to 

his arrest. (Ibid.) Because there were no exigent circumstances or other 

bases to justify a warrantless blood test, the court held Birchfield was 

threatened with an unlawful search and reversed his conviction for refusing 

to submit to a blood test. (Id. at p. 478.) In contrast, a warrantless breath 

test was a permissible search incident to Bernard’s arrest. “[T]he Fourth 

Amendment did not require officers to obtain a warrant prior to demanding 

the [breath] test, and Bernard had no right to refuse it.” (Ibid.) Lastly, the 

court vacated Beylund’s license suspension because the North Dakota 

Supreme Court had erroneously concluded the state could compel both blood 

tests and breath tests incident to arrest. (Ibid.) The high court remanded 

the case for a determination of whether Beylund’s consent to the blood test 

was freely and voluntarily given in light of the inaccuracy of the officer’s 

advisement. (Ibid. & fn. 9.)
18

The most recent United States Supreme Court case involving implied 

consent laws, Mitchell v. Wisconsin (2019) 588 U.S. 840 (Mitchell), applies 

Birchfield and McNeely to a category of cases involving unconscious DUI 

arrestees. The holding in Mitchell—that a warrantless blood draw generally 

is permissible where the arrestee’s condition requires that he be taken to a 

hospital before the police have an opportunity to obtain a standard 

evidentiary breath test (Mitchell, at p. 857 (plur. opn. of Alito, J.))—is less 

pertinent here than its background statement of applicable constitutional 

principles. Echoing Birchfield and the McNeely plurality, Mitchell

acknowledges the constitutional validity of imposing adverse consequences 

for blood testing refusals under implied consent laws. (Mitchell, at p. 847

(plur. opn. of Alito, J.).)

Speaking for a plurality of four justices in Mitchell, Justice Alito 

summarized the state of the law as follows: “We have held that forcing 

drunk-driving suspects to undergo a blood test does not violate their 

constitutional right against self-incrimination. [Citation.] Nor does using 

their refusal against them in court. [Citation.] And punishing that refusal 

with automatic license revocation does not violate drivers’ due process rights 

if they have been arrested upon probable cause, [citation]; on the contrary, 

this kind of summary penalty is ‘unquestionably legitimate.’ ” (Mitchell,

supra, 588 U.S. at p. 847 (plur. opn. of Alito, J.).) When the Mitchell and 

McNeely pluralities and the Birchfield majority opinion are read together, 

five current justices on the United States Supreme Court have joined an 

opinion acknowledging that—short of criminal conviction—states may use 

implied consent laws to impose a variety of adverse consequences on DUI 

arrestees who refuse blood testing. 
19

C. The Trial Court Did Not Err by Instructing with CALCRIM 

No. 2130 That Jurors Could Consider Bolourchi’s Refusal as 

Evidence of Consciousness of Guilt 

Following McNeely and Birchfield, a warrantless blood test incident to 

a DUI arrest may not be justified under the Fourth Amendment based on the 

implied consent law alone. (Alvarez, supra, 98 Cal.App.5th at pp. 548–549 

[actual consent, but not implied consent, justifies a warrantless blood draw].) 

“Taken together, ‘the reasoning and analysis in Birchfield and McNeely, as 

well as other Fourth Amendment precedent, suggest that blood draws may 

only be performed after either obtaining a warrant, obtaining valid consent 

from the defendant, or under exigent circumstances with probable cause.’ ” 

(Alvarez, at p. 550.) In the present case, of course, Bolourchi’s blood was not 

drawn until after the police obtained a warrant, so the Fourth Amendment 

did not limit the introduction of the blood test results into evidence, and 

Bolourchi makes no argument that the results were improperly admitted. 

While the blood test ultimately performed here was permissible under 

the Fourth Amendment, the question presented in this case is what penalties 

or consequences may be imposed on Bolourchi for his refusal to submit to the 

test when no warrant had yet been obtained. Bolourchi contends he had a 

Fourth Amendment “right to demand a warrant before submitting to the 

blood draw,” so his assertion of that right “cannot constitute a refusal under 

the law and, thus, cannot be used against him as evidence of his 

consciousness of guilt.” He argues: “Since the instruction [CALCRIM 

No. 2130] improperly invited the jury to penalize [Bolourchi] for lawfully 

asserting his constitutional right, the giving of the instruction was error.” 

But as the Attorney General points out, the Birchfield court did not 

hold that the Fourth Amendment prohibits all penalties or consequences for a 

driver who refuses to submit to a blood test after a DUI arrest. Instead, 
20

Birchfield held specifically that the imposition of criminal penalties for a 

refusal to submit to a blood test is not permitted. (Birchfield, supra, 579 U.S. 

at pp. 476–477; see id. at p. 444.) Applying the “reasonableness” standard 

that is “always the touchstone of Fourth Amendment analysis,” the Birchfield

court held that a driver “cannot be deemed to have consented to submit to a 

blood test on pain of committing a criminal offense.” (Id. at p. 477.) Before 

stating this conclusion, however, the court emphasized it was not prohibiting 

states from imposing other consequences—specifically, “civil penalties and 

evidentiary consequences”—for a refusal to submit to a blood test. (Id. at 

pp. 476–477, italics added.) The court stated its “prior opinions have referred 

approvingly to the general concept of implied-consent laws that impose civil 

penalties and evidentiary consequences on motorists who refuse to comply,” 

and “nothing we say here should be read to cast doubt on them.” (Ibid.) 

Bolourchi does not mention or address this portion of Birchfield in his 

appellate briefs. 

Here, Bolourchi was not punished criminally for his refusal to submit 

to a warrantless blood test. Unlike the states whose laws were at issue in 

Birchfield, California has never “ ‘made it a stand-alone criminal offense for a 

DUI arrestee to refuse to submit to a chemical test.’ ” (Espinoza v. Shiomoto

(2017) 10 Cal.App.5th 85, 113, fn. 10 (Espinoza).) In some circumstances, 

however, a refusal can result in increased criminal penalties for a driver 

convicted of DUI. As the Espinoza court noted in 2017, “a motorist’s refusal 

to submit to or failure to complete a chemical test, if pleaded and proven by 

the prosecutor, results in increased criminal penalties if the motorist is 

convicted of DUI in violation of section 23152 or 23153. (§§ 23577, 23578.)” 

(Espinoza, at p. 113, fn. 10.) But in 2018, to comply with Birchfield, the 

Legislature amended the relevant statutes to eliminate the increased 
21

criminal penalties where a driver refuses to submit to a blood test, while 

leaving them in place for a refusal to submit to a breath or urine test. 

(§§ 23577, subds. (a), (c), 23578, 23612, subd. (a)(1)(D); Assem. Bill No. 2717, 

Stats. 2018, ch. 177, §§ 1–3, amending §§ 23577, 23578, 23612; see Legis. 

Counsel’s Dig., Assem. Bill No. 2717 [stating Birchfield “held that a motorist 

cannot be punished criminally for his or her refusal to submit to a blood 

test[,]” but stating that “[t]he [Birchfield] court held that administrative 

penalties could be imposed for a refusal to submit to a blood test for those 

purposes”].) 

In this case, the information charging Bolourchi with DUI included 

allegations that he refused to submit to a chemical test within the meaning of 

sections 23577 and 23578. Under the versions of the relevant statutes that 

were in effect when the information was filed in 2020 (i.e., after the 2018 

amendments discussed above), the increased penalties authorized by 

sections 23577 and 23578 already did not apply to a refusal to take a blood 

test. (§§ 23577, subds. (a), (c), 23578, 23612, subd. (a)(1)(D).) But in any 

event, the trial court later granted the prosecutor’s motion to dismiss the 

enhancement allegations for unrelated reasons,8 and the allegations were not 

8 The prosecutor requested (and the court granted) the dismissal 

because the prosecutor had not introduced evidence as to whether Officer 

Finerty provided certain advisements to Bolourchi about the requested test 

and the implied consent law before Bolourchi refused to take the test. The 

court noted those advisements are required by the standard jury instruction 

governing the refusal enhancement (see CALCRIM No. 2131). 

In contrast, detailed advisements are not a prerequisite to admission of 

evidence of a refusal to show consciousness of guilt in a prosecution for DUI. 

(People v. Municipal Court (Gonzales) (1982) 137 Cal.App.3d 114, 118; see 

CALCRIM No. 2130.) And as noted, the trial court later concluded the officer 

had sufficiently advised Bolourchi of “the nature of the test” to warrant 
22

submitted to the jury. Thus, this case does not involve the imposition of 

criminal penalties for a refusal to submit to a blood test. 

We are not persuaded by Bolourchi’s suggestion that he should face no

consequences for his lack of cooperation in submitting to a blood test, such as 

the court’s instruction to jurors that, if they found a refusal occurred, the 

refusal “may show” Bolourchi was aware of his guilt of the DUI charge. As 

noted, Birchfield emphasized it was not holding that the Fourth Amendment 

prohibits such “evidentiary consequences” of a refusal. (Birchfield, supra, 

579 U.S. at pp. 476–477.) 

Bolourchi contends that, because the Fourth Amendment required 

police to obtain a warrant to conduct a blood draw, his lack of cooperation in 

submitting to the test before the warrant was obtained “cannot constitute a 

refusal under the law and, thus, cannot be used against him as evidence of 

his consciousness of guilt.” (Italics added.) We disagree. First, to the extent 

Bolourchi suggests (by his reference to his rights “under the law”) that, under 

the implied consent statute, his conduct could not constitute a refusal or carry 

any adverse consequences, he is incorrect. 

In response to Birchfield, as noted above, see footnote 6, page 12 ante, 

our Legislature in 2018 amended sections 23577, 23578, and 23612 to 

eliminate the increased criminal penalties that previously applied in a DUI 

prosecution when the driver refused to take a blood test (while leaving those 

increased penalties in place for a refusal to take a breath or urine test). 

(§§ 23577, subds. (a), (c), 23578, 23612, subd. (a)(1)(D); Assem. Bill No. 2717, 

Stats. 2018, ch. 177, §§ 1–3.) But the Legislature did not change the 

underlying rule in the implied consent law that, in some circumstances, a 

giving CALCRIM No. 2130 (entitled “Refusal—Consciousness of Guilt”) but 

not CALCRIM No. 2131 (entitled “Refusal—Enhancement”). 
23

driver who is lawfully arrested for DUI is deemed to have consented to, and 

must submit to, a blood test. (§ 23612, subd. (a)(1)(B), (2)(C).) There is no 

statutory right not to submit to a blood test in this circumstance. 

And the implied consent law continues to contemplate that a driver 

who refuses to submit to a statutorily required blood test may face 

consequences (other than criminal penalties) for the refusal. An arrested 

person is to be told that his or her driving privileges may be administratively 

suspended or revoked. (§ 23612, subd. (a)(1)(D) [consequences of failure to 

submit to “the required breath, blood, or urine tests”]; see § 13353, 

subd. (a)(1)–(3).) The arrested driver is also to be advised that a “refusal to 

submit to a test or tests” “may be used against him or her in a court of law.” 

(§ 23612, subd. (a)(4).) 

As the Attorney General notes, where there is a statutory right to 

refuse a particular test, it is error to admit evidence of the refusal. (People v. 

Jackson (2010) 189 Cal.App.4th 1461, 1466 [error to admit evidence of 

defendant’s refusal to take PAS test, because § 23612 granted the right to 

refuse].) But Bolourchi had no statutory right to refuse to take a post-arrest 

blood test, and the implied consent statute does not prohibit instruction or 

comment on his refusal. As a statutory matter, he is simply incorrect that a 

refusal to take a blood test “cannot constitute a refusal under the law and, 

thus, cannot be used against him as evidence of his consciousness of guilt.” 

Apart from the statute, we also find no constitutional error. Notably, 

an instruction similar to CALCRIM No. 2130 was considered and upheld 

against a constitutional challenge in Sudduth, supra, 65 Cal.2d at page 547 

and footnote 5. Sudduth, a DUI case, did not involve a blood draw—it 

involved a breath test—but it drew upon the reasoning in Schmerber (id. at 

p. 546) and thus is instructive here. The defendant in Sudduth also relied on 
24

Griffin v. California (1965) 380 U.S. 609, the United States Supreme Court’s 

landmark case prohibiting comment on a criminal defendant’s failure to 

testify. 

The challenged instruction in Sudduth read in part as follows: “ ‘The 

fact that such test is refused under such circumstances is not sufficient 

standing alone and by itself to establish the guilt of a defendant but is a fact 

which if proven may be considered by you in the light of all other proven facts 

in deciding the question of guilt or innocence. Whether or not such conduct 

shows a consciousness of guilt and the significance to be attached to such a 

circumstance are matters for your determination.’ ” (Sudduth, supra, 

65 Cal.2d at p. 547, fn. 5.) 

Chief Justice Traynor’s opinion for the court in Sudduth explained: 

“The sole rationale for the rule against comment on a failure to testify is that 

such a rule is a necessary protection for the exercise of the underlying 

privilege of remaining silent [citation]. A wrongful refusal to cooperate with 

law enforcement officers does not qualify for such protection. A refusal that 

might operate to suppress evidence of intoxication, which disappears rapidly 

with the passage of time [citation], should not be encouraged as a device to 

escape prosecution.” (Sudduth, supra, 65 Cal.2d at p. 546.) 

Citing Sudduth as a leading precedent, the United States Supreme 

Court reached a similar conclusion in Neville, supra, 459 U.S. at pages 554, 

560, 564. “[T]he values behind the Fifth Amendment are not hindered when 

the State offers a suspect the choice of submitting to the blood-alcohol test or 

having his refusal used against him. The simple blood-alcohol test is so safe, 

painless, and commonplace, [citation], that respondent concedes . . . the State 

could legitimately compel the suspect, against his will, to accede to the test. 

Given, then, that the offer of taking a blood-alcohol test is clearly legitimate, 
25

the action becomes no less legitimate when the State offers a second option of 

refusing the test, with the attendant penalties for making that choice.” 

(Neville, at p. 563.)

In holding it was proper to instruct on consciousness of guilt or admit 

evidence of the defendant’s refusal to test, Sudduth and Neville both focused 

on the fact the defendant had no underlying Fifth Amendment right to refuse 

a chemical test. (Neville, supra, 459 U.S. at pp. 560, fn. 10, 563; see Sudduth, 

supra, 65 Cal.2d at p. 547.) Presumably recognizing it has long been settled 

that a refusal to submit to chemical examination does not fall within the 

purview of the Fifth Amendment, Bolourchi’s contention here is that, under 

McNeely, he had an underlying Fourth Amendment right to refuse to submit 

to a warrantless blood test, so an instruction allowing an inference of guilt 

based on the refusal should be found to be improper. 

Bolourchi draws our attention to Espinoza, supra, 10 Cal.App.5th 85, 

where a Fourth District, Division Two panel noted some uncertainty about 

whether civil consequences for refusal to take a blood test (there, the 

administrative suspension of a driver’s license) were still permitted after 

McNeely and Birchfield. (Espinoza, at pp. 113–114.) In that case, a 

California Highway Patrol (CHP) officer arrested a driver (Espinoza) for DUI 

and informed her that, pursuant to the implied consent law, she had to 

submit to a blood or breath test. (Espinoza, at p. 94.) Espinoza, after stating 

she was a public defender, referred to McNeely and made statements to the 

effect that she would submit to a blood test, but only if police obtained a 

warrant. (Espinoza, at pp. 93–94.) The arresting officer told Espinoza that 

her willingness to submit to a blood test with a warrant would be treated as a 

refusal. (Id. at p. 94.) The officer also stated the CHP’s policy was to obtain 

warrants for forced blood draws only in felony DUI cases, and that no 
26

warrant would be requested in Espinoza’s case. (Ibid.) No warrant was 

obtained, so no blood test was taken. (Ibid.) In addition, Espinoza did not 

submit to a breath test. (Ibid.)

Following administrative proceedings, Espinoza’s driver’s license was 

suspended for one year for refusal to submit to a chemical test as required by 

the implied consent law. (Espinoza, supra, 10 Cal.App.5th at p. 96.) The 

superior court denied Espinoza’s petition for writ relief (id. at pp. 96–97), and 

Espinoza appealed (id. at p. 97). Espinoza argued she did not refuse to 

submit to a chemical test. (Id. at p. 103.) She contended “she had a right 

under McNeely to force the police to obtain a warrant before they could seize 

her blood for testing and, therefore, her standing on her rights did not 

constitute a refusal to submit to a chemical test” under the implied consent 

law. (Id. at pp. 103–104.) 

The appellate court rejected Espinoza’s argument, stating: “Although 

Espinoza had a constitutional right to be free from a warrantless, coerced

search of her blood incident to her lawful arrest, she had no such right with 

respect to a breath test. When Espinoza was told the policy of the CHP was 

to obtain warrants for forced blood draws only in felony DUI cases, and that a 

warrant would not be obtained in her case, Espinoza was required to choose a 

breath test. Espinoza’s purported consent to a blood draw, to the exclusion of 

a breath test, constituted refusal to submit to a chemical test.” (Espinoza, 

supra, 10 Cal.App.5th at p. 104.) 

The Espinoza court explained that, under the implied consent law, a 

driver who provides only conditional, or purported, consent when requested 

to submit to a chemical test is deemed to have refused the test. (Espinoza, 

supra, 10 Cal.App.5th at pp. 104–105.) Espinoza’s position that she would 

consent to a blood test only if the officer obtained a warrant “did not 
27

constitute clear and unequivocal consent to a chemical test and, therefore, 

was not actual consent.” (Id. at p. 105.) Relying in part on the fact Espinoza 

also did not submit to a breath test, the appellate court concluded that 

“Espinoza’s purported consent to a blood test, and her failure to submit to 

and complete a breath test, constituted refusal to submit to a chemical test.” 

(Id. at p. 112.) 

In Espinoza, the Department of Motor Vehicles (Department) argued 

Espinoza’s refusal to submit to a blood test was a sufficient basis for the 

license suspension, and there was no need to address breath tests. (Espinoza, 

supra, 10 Cal.App.5th at p. 112.) The Espinoza court stated it would have 

agreed with this position prior to Birchfield. (Espinoza, at p. 113.) The 

Espinoza court went on to state, however, “it is unclear whether the high 

court would approve of a civil license suspension based solely on a motorist’s 

refusal to submit to a warrantless blood test.” (Ibid.) 

Elaborating on this point, the Espinoza court noted that, under 

Birchfield and McNeely, “[t]he police could not force Espinoza to submit to a 

blood test against her will unless they obtained a warrant or showed there 

were exigent circumstances that justified a warrantless search.” (Espinoza, 

supra, 10 Cal.App.5th at p. 113.) The Espinoza court stated: “Consequently, 

we assume without deciding, that Espinoza could refuse to submit to a 

warrantless blood test unless the police obtained a warrant, and that, 

without more, her refusal to do so could not result in her license being 

suspended.” (Ibid.) 

But Espinoza’s failure to submit to a breath test provided a valid basis 

to suspend her license. The Espinoza court stated that, under Birchfield, “the 

Fourth Amendment does not prohibit the police from forcing a motorist to 

submit to a warrantless breath test incident to his or her arrest, the motorist 
28

has no right to refuse to submit to a breath test or to condition his or her 

submission on the police obtaining a warrant, and the motorist’s refusal to 

submit to the breath test may be the basis of criminal penalties. [Citation.] 

In light of that clear holding, we conclude refusal to submit to a breath test 

incident to arrest may also be the basis of imposing civil penalties under the 

implied consent law, including suspension or revocation of the motorist’s 

driver’s license.” (Espinoza, supra, 10 Cal.App.5th at p. 113.) 

In so holding, the Espinoza court addressed an argument by the 

Department that Birchfield did not apply to the civil penalties in Espinoza’s 

case, because Birchfield only addressed criminal liability for refusing to 

submit to a chemical test. (Espinoza, supra, 10 Cal.App.5th at p. 113.) We 

acknowledge that the discussion on this point in Espinoza gestures toward 

the analysis Bolourchi urges us to adopt in this case. According to the 

Espinoza court, “the Department contends the high court in Birchfield

expressly stated it was not holding that civil penalties could not be imposed if 

a motorist refuses to submit to a chemical test.” (Id. at pp. 113–114.) The 

Espinoza court was not persuaded that the passage on this point in Birchfield

(a passage we have discussed above) established the propriety of imposing 

civil penalties for a refusal to submit to a warrantless blood test, so the 

Espinoza court instead grounded its decision on Espinoza’s refusal to submit 

to a breath test. (Espinoza, at p. 114.) 

The Espinoza court explained its reasoning as follows: “True, the court 

in Birchfield stated its ‘prior opinions have referred approvingly to the 

general concept of implied-consent laws that impose civil penalties and 

evidentiary consequences on motorists who refuse to comply,’ and that 

‘nothing we say here should be read to cast doubt on them.’ [Citations.] But 

the legality of civil penalties for refusing to submit to a warrantless blood test 
29

was not squarely presented in Birchfield. (See [People v. Harris, supra,

234 Cal.App.4th at p. 684] [‘ “ ‘ “It is axiomatic that language in a judicial 

opinion is to be understood in accordance with the facts and issues before the 

court. An opinion is not authority for propositions not considered.” ’ ” ’].) We 

remain somewhat doubtful whether the high court would approve of a civil 

license suspension predicated solely on a motorist’s refusal to submit to a 

warrantless blood test. Rather than decide whether Espinoza’s license could 

be lawfully suspended based solely on her refusal to submit to a warrantless 

blood test, we conclude her license was lawfully suspended because she did 

not submit to a warrantless breath test.” (Espinoza, supra, 10 Cal.App.5th at 

p. 114.) 

Here, of course, the facts differ from those in Espinoza. By the time 

Bolourchi was arrested, he was suspected of driving under the influence of a 

drug rather than alcohol, and the only test he was offered and refused to take 

was a warrantless blood test. Espinoza assumed, without deciding, that 

under Birchfield (and despite the qualifying language used in that case), 

“civil penalties” (such as a license suspension) could not be imposed in this 

circumstance. (Espinoza, supra, 10 Cal.App.5th at pp. 113–114.) The 

present case raises a similar issue, though here we are dealing with the 

imposition of “evidentiary consequences” (Birchfield, supra, 579 U.S. at 

p. 477) (i.e., the instruction allowing an inference of consciousness of guilt) 

attending Bolourchi’s refusal to submit to a warrantless blood test in a 

criminal trial. Whatever may be the case for the civil penalty of license 

suspension, we believe a DUI arrestee may be constitutionally required to 

face an adverse inference at his trial on a DUI charge as a cost of refusing a 

blood test. 
30

As we read Birchfield, that case does not prohibit the imposition of 

such evidentiary consequences—here in the form of the CALCRIM No. 2130 

instruction Bolourchi’s jury was given. As noted, the Birchfield court did not 

lump together all potential consequences of a refusal and hold the Fourth 

Amendment prohibits all of them. (Birchfield, supra, 579 U.S. at pp. 476–

477.) Instead, the court prohibited only “criminal penalties” (id. at p. 477), 

and, while the court did not expressly hold that other consequences are 

permissible, it stated that its opinion should not “be read to cast doubt on” 

“implied-consent laws that impose civil penalties and evidentiary 

consequences on motorists who refuse to comply.” (Id. at pp. 476–477.) Bear 

in mind that here the only criminal penalty sought for Bolourchi’s refusal, the 

section 23577 sentencing enhancement allegation, was dismissed before his 

case went to the jury. 

The Birchfield court’s language suggests it viewed the different 

consequences as part of a continuum, with the most severe consequence 

(criminal penalties) violating the Fourth Amendment because “[t]here must 

be a limit to the consequences to which motorists may be deemed to have 

consented by virtue of a decision to drive on public roads.” (Birchfield, supra, 

579 U.S. at p. 477.) Applying a Fourth Amendment reasonableness standard, 

the court concluded that “motorists cannot be deemed to have consented to 

submit to a blood test on pain of committing a criminal offense.” (Birchfield, 

at p. 477.) 

In our view, that does not mean the imposition of lesser consequences is 

unreasonable. In a different portion of its opinion, the Birchfield court 

stressed that, “The States and the Federal Government have a ‘paramount 

interest . . . in preserving the safety of . . . public highways.’ ” (Birchfield,

supra, 579 U.S. at p. 464.) Implied consent laws, which are designed to 
31

discourage drivers from driving while impaired (and to encourage cooperation 

with testing that aims to determine if a driver is impaired), “serve a very 

important function.” (Id. at p. 466.) In light of the important government 

interests involved, we decline to extend Birchfield to prohibit the imposition 

of an evidentiary consequence for Bolourchi’s refusal to submit to a blood 

test. To the extent Espinoza can be read to support a contrary analysis, we 

respectfully disagree with it. 

Finally, we note that, although Espinoza expressed uncertainty in 2017 

about the reach of the 2016 Birchfield decision, the Legislature in 2018 

enacted statutory amendments reflecting an understanding that, while 

Birchfield prohibits criminal penalties for a refusal to submit to a blood test, 

there is no constitutional requirement that such a refusal must have no 

consequences at all. (Assem. Bill No. 2717, Stats. 2018, ch. 177, §§ 1–3; see 

Legis. Counsel’s Dig., Assem. Bill No. 2717 [Birchfield prohibits criminal 

penalties, but not administrative penalties, for refusal to submit to a blood 

test]; § 23577, subd. (c) [“The penalties in this section [increased criminal 

penalties for refusal to submit to a breath or urine test] do not apply to a 

person who refused to submit to or complete a blood test pursuant to Section 

23612. This section does not prohibit imposition of administrative actions 

involving driving privileges.”].) Thus, the Legislature does not appear to 

share Bolourchi’s view that DUI arrestees may freely refuse to submit to 

blood draws and expect to avoid not only criminal conviction but all other 

adverse consequences for the refusal. 

* * * 

In sum, we reject Bolourchi’s argument that the CALCRIM No. 2130 

instruction given in this case “improperly invited the jury to penalize [him] 

for lawfully asserting [a] constitutional right” to refuse consent to a 
32

warrantless blood draw. The Birchfield court made clear it was not 

recognizing an unqualified Fourth Amendment right (1) to refuse to take a 

blood test, and (2) to be free of any consequences flowing from the refusal. 

(Birchfield, supra, 579 U.S. at pp. 476–477.) Instead, the Birchfield court 

concluded only that, applying a Fourth Amendment reasonableness standard, 

“motorists cannot be deemed to have consented to submit to a blood test on 

pain of committing a criminal offense.” (Birchfield, at p. 477, italics added.) 

Birchfield did not prohibit (and stressed it did not intend to “cast 

doubt” on) implied consent laws that impose civil penalties and evidentiary 

consequences. (Birchfield, supra, 579 U.S. at pp. 476–477.) There is a 

throughline here. The acknowledged validity of imposing adverse 

consequences on DUI testing refusers we see in all of the United States 

Supreme Court’s Fourth Amendment opinions addressing implied consent 

laws, first in the McNeely plurality opinion, again in Birchfield, and again in 

the Mitchell plurality opinion—so long as the consequence is not a criminal 

conviction—supports this conclusion. 

III. DISPOSITION

The judgment is affirmed. 

STREETER, J. 

WE CONCUR:

BROWN, P. J.

HITE, J.*

* Judge of the Superior Court of California, City and County of San 

Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.
People v. Bolourchi – A167289

Trial Court: Superior Court of California, County of Marin 

Trial Judge: Hon. Beth S. Jordan 

Counsel: Heather E. Shallenberger, under appointment by the Court 

of Appeal, for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Jeffrey M. Laurence, Senior 

Assistant Attorney General, Bridget Billeter, Supervising 

Deputy Attorney General, and Julia Y. Je, Deputy Attorney 

General, for Plaintiff and Respondent.