3rd District panel asks: ‘Does silence equal consent’

SACRAMENTO -- Does silence equal consent? This seemingly philosophical question was at the heart of a years-old drunk driving case argued before the 3rd District Court of Appeal on Monday.

Corrina Bodenmann was pulled over by a California Highway Patrol officer in Yolo County. She refused a Breathalyzer test, was arrested, and was subsequently found to be intoxicated through a blood test. Bodenmann did not ultimately resist the blood test, but also never gave a verbal affirmation of consent, according to her attorney.

However, she was charged with drunken driving and resisting the test and was tried in 2012. The case's named defendant is Jean Shiomoto, who at the time was chief deputy director of the California Department of Motor Vehicles. Bodenmann v. Shiomoto, C072975 (Cal. App. 3rd, filed Jan. 24, 2013).

Bodenmann's attorney, Orestes A. Cross of Valor Legal PC in Berkeley, began his appellate argument by making a distinction between her refusal before her arrest and the fact "she did not refuse" the test once she was in custody and the medical team was called. He also argued her actions or lack thereof should have been considered within the context of a serious episode of domestic violence she experienced earlier that day.

"Silence in the face of a request constitutes denial," shot back Justice Harry E. Hull Jr., citing Garcia v. Department of Department of Motor Vehicles (2010) 185 Cal. App. 4th.

Garcia was an earlier drunk driving case where the court found "consent that is not clear and unambiguous may be deemed a refusal," and it is not necessary to "determine the state of mind of the arrested driver."

That decision, however, has been reinterpreted by multiple courts that have attempted to apply it in slightly different circumstances. It followed a line of California appellate decisions that have found arrestees who have given conditional consent or submitted to a test under protest may still be deemed to have resisted.

At one point, Justice Louis R. Mauro asked if Bodenmann's "mixed response," jumping from agreement to refusal to silence, could be considered similar to other combinations of behavior found to constitute resistance.

Cross argued there was nothing in Bodenmann's post-arrest behavior that signaled such resistance.

"Did she say anything to suggest her past refusal is now rescinded and she was ready to take the blood test?" asked Presiding Justice Vance W. Raye. "Does she have to kick the officer or swipe his arm out of the way in light of what happened before?"

"She did not refuse," Cross said, noting she did nothing to physically stop the medical technicians.

"What does that mean?" Raye asked. "So consent is offering no resistance?"

"Yes, your honor," Cross replied. In his rebuttal, he added Bodenmann engaged in physical compliance by submitting to what the medical staff asked her to do.

Deputy Attorney General James F. Curran took only part of his allotted time, repeatedly arguing, "Silence means refusal" and Bodenmann's actions or lack thereof must be interpreted in the light of her pre-arrest refusal.

"Once she's done all that, she has to correct the record?" Raye asked.

Curran agreed, noting Bodenmann gave no relevant verbal responses post-arrest.