Carleton v. Superior Court

• Decision Date: 09 August 1985
• Citation: 216 Cal.Rptr. 890,170 Cal.App.3d 1182
• Court: California Court of Appeals Court of Appeals
• Parties: Robert Scott CARLETON, Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondent, The PEOPLE of the State of California, Real Party in Interest. D002197.

Page 890

216 Cal.Rptr. 890

170 Cal.App.3d 1182

Robert Scott CARLETON, Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondent The PEOPLE of the State of California, Real Party in Interest.

D002197.

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

Aug. 9, 1985.

Review Denied December 11, 1985.

[170 Cal.App.3d 1184] David R. Thompson, San Diego, for petitioner.

No appearance for respondent.

Edwin L. Miller, Jr., Dist. Atty., Peter C. Lehman and Edward J. Mantyla, Deputy Dist. Attys., for real party in interest.

WIENER, Associate Justice.

Robert Scott Carleton was charged with driving under the influence of alcohol (Veh.Code, § 23152, subd. (a)), felony hit and run (Veh.Code, § 2001) and two counts of vehicular manslaughter (Veh.Code, § 23153, subds. (a) and (b)). After his arrest, he was taken to the Vista Detention Facility (jail) and was asked to provide a sample of blood, breath or urine so his blood alcohol level could be determined. (Veh.Code, § 13353.) Carleton refused. A blood sample was forcibly extracted from his arm and the later test showed that approximately two hours after being stopped Carleton's blood/alcohol (BA) was .21. He unsuccessfully moved to suppress the blood and related test results on the basis (1) there were no exigent circumstances excusing the police from getting a warrant or (2) the circumstances surrounding the taking of blood violated his due process rights. Carleton then sought mandate or prohibition and requested a stay. We granted the stay pending response from the People and disposition of the matter. Believing there was substantial evidence to support the ruling, we, with Justice Staniforth dissenting, denied the petition and vacated the stay. (People v. Ryan (1981) 116 Cal.App.3d 168, 183, 171 Cal.Rptr. 854, petn. for hrg. den., Apr. 1, 1981.) Carleton then successfully petitioned for a hearing in the California Supreme Court. That court transferred the case to itself and then retransferred it here directing us to issue an alternative writ. After argument and further briefing we again deny Carleton's petition.

I

Carleton claims that factually the "emergency doctrine" of People v. Superior Court (Hawkins) (1972) 6 Cal.3d 757, 100 Cal.Rptr. 281, 493 [170 Cal.App.3d 1185] P.2d 1145, cannot apply to him. Carleton's argument is tied to his conclusion that lacking an emergency a search warrant must be obtained before blood may be withdrawn from a suspect arrested for felony drunk driving. Recognizing his conclusion is inconsistent with Hawkins, Carleton asserts we must deviate from precedent to properly accommodate the technological advances since 1972 when Hawkins was decided. Carleton argues the record here illustrates that a telephonic search warrant can be obtained within minutes eliminating any risk of losing the evidence. Carleton also explains that increased knowledge enables experts to accurately extrapolate the BA to the time of the offense where the test is taken within a few hours after the incident giving rise to the arrest. We are unpersuaded.

Hawkins holds a search warrant is not required provided the defendant is under arrest, probable cause exists for taking the blood and the withdrawal is accomplished in a medically approved manner. Thus, our Supreme Court has created an exception to the need for a warrant following a felony drunk driving arrest by permitting blood to be withdrawn incidental to the lawful arrest. "It is clear ... the Fourth Amendment does not bar a compulsory Even if Carleton were correct and Hawkins established an "emergency doctrine" we would hold an emergency was present on the facts of this case. Although it is theoretically possible to determine a person's BA level at the time he was driving, following the driver's arrest, there are numerous variables such as weight, or time and content of last meal which may affect the rate at which the alcohol dissipates. Parties whose blood alcohol level was .10 at the time of arrest would test well below that figure if, as would have been the case here had a warrant been sought, they were tested four hours after being stopped. The People have a legitimate and important interest in preventing the destruction of evidence by obtaining a sample as soon as possible. Accordingly, we conclude the facts here present the type of emergency situation where there is no need for a warrant. There was substantial evidence Carleton was intoxicated. The blood was taken after he was lawfully arrested.

seizure, without a warrant, of a person's blood for the purposes of a blood alcohol test to determine intoxication, provided ... the taking of the sample is done in a medically approved manner, is incident to a lawful arrest, and is based upon the reasonable belief ... the person is intoxicated." (Hawkins, at p. 761, 100 Cal.Rptr. 281, 493 P.2d 1145.)

II

Carleton also argues the manner of obtaining his blood sample violated due process.

Whether blood may be taken from a defendant without his or her consent and used as evidence against him in his criminal trial has been a hotly debated question. Dissenting in Breithaupt v. Abram (1957) 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448, Chief Justice Warren had no hesitancy in asserting that lacking consent a defendant's blood test was inadmissible.

"[I]t does not follow from the fact that a technique is a product of science or is in common, consensual use for other purposes that it can be used to extract evidence from a criminal defendant without his consent. Would the taking of spinal fluid from an unconscious person be condoned because such tests are commonly made and might be used as a scientific aid to law enforcement? [p] Only personal reaction to the stomach pump and the blood test can distinguish them. To base the restriction which the Due Process Clause imposes on state criminal procedures upon such reactions is to build on shifting sands. We should, in my opinion, hold that due process means at least that law-enforcement officers in their efforts to obtain evidence from persons suspected of crime must stop short of bruising the body, breaking skin, puncturing tissue or extracting body fluids, whether they contemplate doing it by force of by stealth." (Id., 352 U.S., at pp. 442-443, 77 S.Ct. at 413-414.)

The Chief Justice, however, did not succeed in persuading his brethren. A majority in Breithaupt decided there was nothing "brutal" or "offensive" in the taking of a sample of blood when done in a medically approved fashion.

"The blood test procedure has become routine in our everyday life. It is a ritual for those going into the military service as well as those applying for marriage licenses. Many colleges require such tests before permitting entrance and literally millions of us have voluntarily gone through the same, though a longer, routine in becoming blood donors.... We, therefore, conclude that a blood test taken by a skilled technician is not such 'conduct that shocks the conscience,' [citation] nor such a method of obtaining evidence that it offends a 'sense of justice,' " [citation.] (Id., at pp. 436-437, 77 S.Ct. 408, 1 L.Ed.2d 448.)

The same issue was examined further in Schmerber v. California (1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. There, at the direction of a police officer Schmerber's blood sample was taken by a physician at the hospital. Schmerber unsuccessfully argued admitting the blood denied him his rights under the Fourth, Fifth, Sixth and Fourteenth Amendments. Schmerber reiterated that the withdrawal Recently in Winston v. Lee (1985) 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 the United States Supreme Court had occasion to review Schmerber in a context where the People proposed to perform surgery on the defendant to remove a bullet lodged under his left collarbone. Although a unanimous court held this compelled surgical intrusion into an individual's body for evidence was unreasonable under the Fourth Amendment, (id., at p. 1620) it again repeated the language in Schmerber quoting Breithaupt emphasizing the blood test procedure is routine. Taking blood must be "contrasted sharply with the practice in Rochin v. California 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), in which police officer's broke into a suspect's room, attempted to extract narcotics capsules he had put into his mouth, took him to a hospital, and directed that an emetic be administered to induce vomiting. Rochin recognizing the individual's interest in 'human dignity' held the search and seizure unconstitutional under the due process clause." (Winston at pp. 1617-1618, fn. 5.)

of blood "did not offend that 'sense of justice' of which we spoke in Rochin v. California [1952] 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183] ... and nothing in the circumstances of this case or in supervening events persuades us that this aspect of Breithaupt should be overruled." (Id., 384 U.S., at p. 760, fn. omitted, 86 S.Ct. at p. 1830.)

This lengthy introduction is for the purpose of emphasizing the substantial difference between taking sufficient blood for a blood test and the unconstitutional conduct condemned in Rochin. Conceptually here the taking of Carleton's blood sample for the test was not constitutionally forbidden. (People v. Duroncelay (1957) 48 Cal.2d 766, 770, 312 P.2d 690; People v. Ryan, supra, 116 Cal.App.3d at pp. 181-183, 171 Cal.Rptr. 854; People v. Brannon (1973) 32 Cal.App.3d 971, 108 Cal.Rptr. 620; People v. Fite (1968) 267 Cal.App.2d 685, 690-691, 73 Cal.Rptr. 666.) It is only if Carleton's resistance to the test resulted in excessive police force that the possibility of unconstitutional conduct arises. Law enforcement must act reasonably and use only that degree of force which is necessary to overcome a defendant's resistance in taking a blood sample. ¹ Even where necessary to obtain a blood sample police may not act in a manner which will "shock the conscience". A defendant's arbitrary refusal to submit to a blood...