Brown v. Municipal Court

• Decision Date: 16 November 1978
• Citation: Brown v. Municipal Court, 150 Cal.Rptr. 216, 86 Cal.App.3d 357 (Cal. App. 1978)
• Court: California Court of Appeals
• Parties: Edward Eugene BROWN, Petitioner and Respondent, v. The MUNICIPAL COURT OF the LOS ANGELES JUDICIAL DISTRICT, Respondent; The PEOPLE of the State of California, Real Party in Interest and Appellant. Civ. 52980.

Page 216

150 Cal.Rptr. 216

86 Cal.App.3d 357

Edward Eugene BROWN, Petitioner and Respondent, v.The MUNICIPAL COURT OF the LOS ANGELES JUDICIAL DISTRICT, RespondentThe PEOPLE of the State of California, Real Party in Interest and Appellant.

Civ. 52980.

Court of Appeal, Second District, Division 1, California.

Nov. 16, 1978.

Burt Pines, City Atty., Laurie Harris, S. Thomas Todd and Maureen R. Siegel, Deputy City Attys., for real party in interest and appellant.

Pray, Price, Williams & Russell, and Jock R. Davidson, Long Beach, for petitioner and respondent.

LILLIE, Acting Presiding Justice.

The People(real party in interest in the superior court) appeal from judgment ¹ ordering the issuance of a writ of prohibition/mandate restraining the municipal court from proceeding in an action charging petitioner with violation of Vehicle Code section 23102, subdivision (a)(driving a vehicle while under the influence of intoxicating liquor), and ordering it to dismiss the action.

The minute order granting the petition reflects the court's findings of fact: Following his arrest for violation of section 23102, subdivision (a), defendantpetitioner was taken to a police station where a breath test to determine the alcoholic content of his blood was administered.He then was taken to a hospital for examination for possible neck injuries.At the hospital petitioner stated he wished to have a blood test, and offered to pay for the test.A technician with the equipment necessary to take a blood sample was available at the hospital.Nevertheless, the police officer accompanying petitioner refused to allow a blood test, telling petitioner that he could return to the hospital and have the test made after being released from custody.Petitioner was taken back to jail and was not released until three or four hours later.The court concluded that the refusal of the police officer to allow petitioner to procure a sample of his blood prevented him from obtaining evidence necessary to his defense, and constituted a denial of due process of law "entitling him to his discharge."

Appellant contends: (1) the refusal of petitioner's request for a blood test did not constitute a denial of due process of law; and (2) even if there was a denial of due process, dismissal of the action against petitioner was not warranted.We disagree with the first contention but conclude there is merit to the second contention, and order reversal of the judgment.

I

The denial of an opportunity to procure a blood test on a charge of intoxication prevents the accused from obtaining evidence necessary to his defense, and is a denial of due process of law.(In re Newbern(1961)55 Cal.2d 508, 513, 11 Cal.Rptr. 551, 360 P.2d 47.)While there is no duty or obligation on law enforcement officers to administer a blood test (In re Koehne(1960)54 Cal.2d 757, 759, 8 Cal.Rptr. 435, 356 P.2d 179;McCormick v. Municipal Court(1961)195 Cal.App.2d 819, 821, 16 Cal.Rptr. 211), in no event can an officer frustrate the reasonable efforts of an accused to obtain a timely sample of his blood without denying him due process of law.(In re Martin(1962)58 Cal.2d 509, 512, 24 Cal.Rptr. 833, 374 P.2d 801.)

Appellant argues there was no denial of due process here because petitioner was free to procure a blood test after his release from jail, relying upon In re Howard(1962)208 Cal.App.2d 709, 25 Cal.Rptr. 590.In Howard, petitioner was arrested for drunk driving at 5:30 or 5:40 p. m; at 7:30 p. m. she was taken to jail, where she requested that her physician, almost two hours' driving time away, be notified of her arrest so that he could give her a blood test.The police denied the request, but offered to take her to a hospital (10 minutes from the jail) where she could select a doctor of her choice to give her a blood test.She declined, and was released from jail 20 minutes to a half hour after being taken there.Thereafter, she made no effort to contact her physician to have a blood test made.An expert testified that a blood test made as much as five hours after the arrest would still have probative value.The court held that there was no denial of due process in the refusal to arrange for a blood test by petitioner's own physician because: (1)petitioner was offered an opportunity to have a test made by a doctor of her choice at the local hospital; and (2)she had ample opportunity to contact her own physician after her release, pointing out that a test made under the second alternative would have been made in time to have probative value.

Unlike the situation in Howard, the record herein indicates that petitioner was released from jail four and one-half or five and one-half hours following the incident for which he was arrested.²Hence, a blood test made after his release would not have had probative value."It is a matter of common knowledge that the intoxicating effect of alcohol diminishes with the passage of time. . . .The efficacy of a blood test depends upon its being made as soon as possible after the time of the offense.To be of any probative value the test must be 'near' to the offense in point of time.If it is not taken promptly after the arrest, it proves nothing."(In re Newbern(1959)175 Cal.App.2d 862, 866, 1 Cal.Rptr. 80, 83.)Moreover, in Howard petitioner had a second opportunity to procure a meaningful blood test by accepting the offer of police to take her to a local hospital; herein, petitioner already was at a hospital in the company of an officer when he requested a blood test, and a technician was on hand with the necessary equipment.Thus, the officer would not have been inconvenienced or delayed by allowing petitioner to have a sample of his blood taken at the hospital.It would have required only a few minutes; the sample could have been analyzed later without the necessity of petitioner's presence."All the doctor usually does is take a blood sample (a nurse can also take it), and turn it over to a laboratory for analysis.The laboratory makes the determination of the alcohol content not the doctor."(In re Howard, supra, 208 Cal.App.2d 709, 717, 25 Cal.Rptr. 590, 594.)

Appellant contends that any opportunity available to an accused to secure a blood test is sufficient to satisfy due process.However, it is clear that he must be given an opportunity "reasonable under the circumstances, to procure a Timely sample of his blood . . .."(In re Koehne, supra, 54 Cal.2d 757, 759, 8 Cal.Rptr. 435, 437, 356 P.2d 179, 181.)(Italics added.)The opportunity herein was reasonable petitioner was at a hospital, a technician was available to take a blood sample, and petitioner offered to pay for the test and a sample of his blood taken at the time of the request would have been timely, whereas a sample taken after his release, as suggested by the officer, would not have been.

Appellant's argument that petitioner cannot claim a denial of due process because police gave him a breath test to determine the alcoholic content of his blood before he requested a blood test, is without merit, for Vehicle Code section 13354, subdivision (b), gives a person arrested on a charge of drunk driving the right to procure, at his own expense, a blood alcohol test in addition to any such test administered by police.

II

A refusal by police to allow one accused of intoxication to procure a timely blood test amounts to a suppression of evidence.(SeeIn re Martin, supra, 58 Cal.2d 509, 513, 24 Cal.Rptr. 833, 374 P.2d 801.)However, not every suppression of evidence requires dismissal of charges.(People v. Peinado(1976)67 Cal.App.3d Supp. 1, 11, 136 Cal.Rptr. 845.)The remedies to be applied need be only those required to assure the defendant a fair trial.(People v. Harris(1976)62 Cal.App.3d 859, 863, 133 Cal.Rptr. 352.)

At the station, police administered a breath test to determine the alcoholic content of petitioner's blood.Hence, the purpose of the blood test requested by him presumably was to impeach the reliability or credibility of the results of the breath test.Where potentially impeaching evidence on behalf of a defendant is suppressed, due process does not require dismissal of the action, but only exclusion of the prosecution's evidence which might have been impeached by the evidence suppressed.Such is the conclusion reached in People v. Hitch(1974)12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, wherein the Supreme Court stated (p. 654, 117 Cal.Rptr. p. 18, 527 P.2d p. 370): "The material evidence provided by a preservation of the (breathalyzer test) ampoules and their contents serves the function of possibly impeaching the test results.Therefore suppressing the test Results should fully balance the improper failure to preserve the potentially impeaching evidence."(Italics in original.)By analogy, suppression of the results of the breath test administered to petitioner herein is all that due process demands, and is sufficient to secure to petitioner a fair trial.

It is true that In re Newbern, supra, 55 Cal.2d 508, 513, 11 Cal.Rptr. 551, 554, 360 P.2d 47, 50, states: "The denial of an opportunity to procure a blood test on a charge of intoxication prevents the accused from obtaining evidence necessary to his defense and is a denial of due process of law Entitling him to his discharge."(Italics added.)This rule, however, has been substantially limited by People v. Hitch, supra, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, in the situation where a chemical test for blood alcohol has actually been performed but the defendant is denied the opportunity of challenging the validity of the test by intentional but good faith action of the police.³Hitch holds that in that situation due process is satisfied by the exclusion of the results of the test which the defendant is unable to challenge.

In Hitch, a breathalyzer test was administered to defendant by police pursuant to Vehicle Code section 13353, and their subsequent...