Barton

Defendant had been a passenger in an automobile which struck another car. A state highway patrolman found him seated in the vehicle, exhibiting signs of intoxication. After administering roadside sobriety tests, the officer placed him under arrest 1 and took him to a public emergency hospital with a view toward additional intoxication tests, including a blood alcohol analysis. In the hospital a struggle broke out between defendant and several highway patrol officers. As a consequence of the affray, defendant was charged with assault upon a peace officer (in violation of Penal Code, section 241) and a jury found him guilty. He appeals from the order granting probation.

The prosecution proposed and the trial court gave the following jury instruction: “You are instructed that on the date alleged in the information, the defendant did not have a constitutional right to refuse a test designed to produce physical evidence in the form of a blood sample.” This instruction is the sole error assigned on appeal.

The evidence was in sharp conflict. According to the prosecution witnesses Davis, the arresting officer, told defendant that a physician would examine him and would draw a blood…