Thanks to A Diamond, I have a great one page form order for testing pursuant to 18.22 CCP. My question is that the statute makes the following statement:

"If the person refuses to submit voluntarily to the procedure or test, the court shall require the person to submit to the procedure or test."\

I read this to say that an effort must first be made to get the person to voluntarily consent to testing. Opinions?

In our experience, most of them actually consent. But I believe that knowing that the court can order them if they do not consent is very helpful in their decision-making, especially if they have counsel.

Ann

Do you think the statute first requires an attempt to gain defendant's consent before asking the court for testing?

It's arguable, but the statute says: "The court may direct the person to undergo the procedure or test on its own motion or on the request of the peace officer. If the person refuses to submit voluntarily to the procedure or test, the court shall require the person to submit to the procedure or test." So it looks, literally, like the court may first 'direct' and then if the person does not cooperate the court may 'require'. Seems to me the court 'directs' and 'requires' by order. I don't think we've had this come up because I think someone in medical always asks before we proceed to court. As I said, most agree. Defense lawyers like having something their assualtive defendant in jail can do that looks 'nice', and cooperating with the testing so that the officer who was bitten does not need to worry about the health issue (or can start treatment asap) doesn't hurt the defendant.

I do think this statute is separate from H & S 81.050, which applies in other situations but is also an option. I do not think you have to comply with the H & S administrative order procedure to get a CCP 18.22 order from a court -- they are different routes to testing.