Kapsack & Bair Set New Standard for Administration of Blood-Alcohol Tests under California “Implied Consent” Law

Oakland, California (EastBayDaily) — The law firm of Kapsack & Bair (http://www.kandblaw.com/) won a case in the The First Appellate District Court of California that sets new precedent on how law enforcement officers must conduct tests to determine if someone has been driving under the influence (DUI). No longer can officers use a person’s confusion between their obligations under California’s “implied consent” rules and their rights under Miranda to cite them as a test refusal.

By taking the optional step of formally publishing their opinion, the Court affirms the importance of Kapsack & Bair’s arguments and makes them searchable and citable in future California DUI cases. Interested parties can read the decision online at California Court of Appeal Case Number A135763.

“Miranda rights and implied consent are probably the two legal concepts that most people have some vague idea about,” said Bruce Kapsack. “Ironically, though, the popular notions of these two concepts have a seemingly huge contradiction – one says you get to talk to a lawyer and the other says you don’t. While legal professionals, understand the difference between the two, someone just arrested for suspicion of DUI somehow needs to resolve the differences in just the few moments it takes the officer to read the instructions.”

In the case of Kapsack and Bair’s client, California Highway Patrol Officer made no effort to resolve her confusion and simply marked her as a DUI refusal which carries a mandatory 12 month driver license suspension. Kapsack & Bair won win a writ of mandate setting aside the suspension in the Superior Court of Alameda County; however, the California Department of Motor Vehicles chose to appeal this decision. With the Appellate Courts affirmation of the lower court ruling, law enforcement officers cannot “mechanically” read the admonition of a person’s obligations under implied consent if that person is obviously confused.

About Kapsack & Bair, LLP Kapsack & Bair is a law firm that focuses on DUI defense cases throughout Northern California. Since its founding in 1987, the law firm of Kapsack & Bair has help thousands of people fight their DUI arrests. The partners, Bruce Kapsack and Hudson Bair, are recognized experts in the field. Kapsack is the author of the highly influential book Innovative DUI Trial Tools and one of only six attorneys in California to be Board Certified in DUI Defense. Mr. Bair has specific expertise on analyzing chemical tests for blood alcohol concentrations that he has written for the Continuing Education of the Bar. Both partners provide workshop trainings in DUI defense to other attorneys.


Bruce Kapsack
Kapsack & Bair, LLP

Hudson Bair