§ 3605.

CHEMICAL BLOOD, BREATH, OR URINE TESTS; OBLIGATION OF OFFICER TO ADVISE REGARDING LEGAL RIGHTS AND CONSEQUENCES; CONFISCATION OF FIREARM FOR REFUSAL TO SUBMIT TO TEST; HEARING

a.

(1) Any person who has upon his or her person a firearm while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug, shall be deemed to have given his or her consent to a chemical test of his or her blood, breath, or urine for the purpose of determining the alcoholic content of his or her blood if lawfully arrested for any offense allegedly committed in violation of Section 3602. The test shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person had upon his or her person a firearm in violation of Section 3602. The person shall be told that his or her failure to submit to, or the noncompletion of, a chemical test will result in the confiscation of the person’s firearm for a period of six months.

2.

The person arrested shall have the choice of whether the test shall be of his or her blood, breath, or urine, and the person shall be advised by the officer that he or she has such a choice. If the person arrested either is incapable, or states that he or she is incapable, of completing any chosen test, the person shall then have the choice of submitting to and completing any of the remaining tests or test, and the person shall be advised by the officer that the person has that choice.

3.

If the person is lawfully arrested for having upon his or her person a firearm while under the influence of an alcoholic beverage or under the combined influence of an alcoholic beverage and any drug, and, because of the need for medical treatment, the person is first transported to a medical facility where it is not feasible to administer a particular test of, or to obtain a particular sample of, the person’s blood, breath, or urine, the person shall have the choice of those tests which are available at the facility to which that person has been transported. In such an event, the officer shall advise the person of those tests which are available at the medical facility and that the person’s choice is limited to those tests which are available.

4.

The person shall also be advised by the officer that he or she does not have the right to have an attorney present before stating whether he or she will submit to a test, before deciding which test to take, or during administration of the test chosen, and shall also be advised by the officer that, in the event of refusal to submit to a test, the refusal may be used against him or her in a court of law.

5.

Any person who is unconscious or otherwise in a condition rendering him or her incapable of refusal shall be deemed not to have withdrawn his or her consent and such a test may be administered whether or not the person is told that his or her failure to submit to, or the noncompletion of, the test will result in the confiscation of his or her firearm. Any person who is dead shall be deemed not to have withdrawn his or her consent and such a test may be administered at the direction of a peace officer.

b.

If any person refuses the officer’s request to submit to, or fails to complete, a chemical test, the officer shall confiscate the person’s firearm for a period of six months.

c.

(1) Upon the person’s request in writing and within 15 days from the date of receipt of that request, the law enforcement agency confiscating a weapon under this Article shall afford the person whose firearm has been confiscated an opportunity for a hearing in the same manner and under the same conditions as provided in Article 3 (commencing with Section 14100) of Chapter 3 of the California Vehicle Code. For the purposes of this Section, the scope of the hearing shall cover the issues of whether the peace officer had reasonable cause to believe the person had upon his or her person a firearm in violation of Section 3602, whether the person was placed under arrest, whether the person refused to submit to, or did not complete, the test after being requested by a peace officer, and whether, except for the persons described in Subdivision (a) who are incapable of refusing, the person had been told that his or her firearm would be confiscated if he or she refused to submit to, or did not complete, the test.

d.

Any person who is afflicted with hemophilia shall be exempt from the blood test required by this Section.

e.

Any person who is afflicted with a heart condition and is using an anticoagulant under the direction of a licensed physician and surgeon shall be exempt from the blood test required by this Section.

f.

A person lawfully arrested for any offense allegedly committed while the person had upon his or her person a firearm in violation of Section 3602 may request the arresting officer to have a chemical testmade of the arrested person’s blood, breath, or urine for the purpose of determining the alcoholic content of that person’s blood, and, if so requested, the arresting officer shall have the test performed.

History

(Added by Ord. 399-82, App. 8/12/82)

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