People v. Arter, 112017 SUPAD, JAD17-20
|Opinion Judge:||David Reed Presiding Judge of the Appellate Division.|
|Party Name:||THE PEOPLE, Plaintiff and Respondent, v. ADAM ARTER, Defendant and Appellant.|
|Attorney:||Adam Davytan, Yolo County Public Defender, for defendant and appellant. Alex Kian, Yolo Couunty Distrct Attorney for plaintiff and respondent.|
|Judge Panel:||WE CONCUR: David Rosenberg Judge of the Appellate Division, Daniel Maguire Judge of the Appellate Division.|
|Case Date:||November 20, 2017|
|Court:||Superior Court of California|
APPEAL from a judgment of the Superior Court of Yolo, Timothy L. Fall, Affirmed.
Adam Davytan, Yolo County Public Defender, for defendant and appellant.
Alex Kian, Yolo Couunty Distrct Attorney for plaintiff and respondent.
David Reed Presiding Judge of the Appellate Division.
Defendant Adam Arter appeals from the trial court's order denying his motion to suppress. Finding no error, we AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
On November 18, 2016, the People filed a complaint against defendant Adam Arter, alleging two counts: Count 1, a misdemeanor violation of Harbors and Navigations Code section 655(b), operating a vessel while under the influence of alcohol or drugs, Count 2, a misdemeanor violation of section 655(c), operating a vessel at.08 BAC or above, and Count 3, a misdemeanor violation of section 655.2, for speeding.
On January 20, 2017, defendant filed a motion to suppress evidence, which the trial court denied on March 16, 2017.
On March 29, 2017, defendant filed a timely notice of appeal from the denial of the motion to suppress.
According to the facts adduced at the suppression hearing:
On September 24, 2016, Officer Sergeant (“officer”) Sam Machado detained the occupants of a boat on the Sacramento River in Yolo County, including defendant Adam Arter, for speeding. (Reporter's Transcript (“RT”) 5-7, 38.) Mr. Arter initially denied having consumed any alcohol. (RT 9.) The officer asked if he could see defendant's eyes and saw smooth pursuit and max deviation (nystagmus) in defendant's left eye. Defendant continued to deny consuming alcohol. (RT 9.)
During this detention, the officer asked if Mr. Arter would submit to a breath test, to which Mr. Arter agreed and provided a sample of.079% blood alcohol content (BAC) at around 4:00 p.m. (RT 9-10.) After obtaining this initial breath sample, the officer requested that Mr. Arter perform field sobriety tests to ensure that he was safe to operate the vessel. (RT 25.) Defendant performed the finger to nose test, hand pat, and finger count test in a manner that suggested that he was impaired. (RT 12, 13, 27.) The officer detected an odor of alcohol coming from defendant's person, and then defendant admitted consuming two pints of beer 45 minutes to one hour before that. (RT 14-15.) The officer asked defendant if defendant thought he could drive a vehicle under his condition, and he replied that he could not. (RT 15.)
As part of the field sobriety tests, the officer requested that Mr. Arter submit to another preliminary breath test, explaining that it would be another field sobriety test. (RT 25.) The officer explained that if Mr. Arter were arrested, the preliminary breath test would not be in place of an evidentiary breath test. (RT 17.) Mr. Arter submitted to the preliminary breath test with a reading of.094% BAC. (RT 15-16.)
Following the administration of the preliminary alcohol screen test, the officer placed Mr. Arter under arrest and obtained two evidentiary breath samples from him. (RT 16.) In requesting that Mr. Arter provide evidentiary samples, the officer read him an advisement:
You have been arrested for a BUI. I'm requesting that you submit to a chemical test of your breath or blood. You have the right to refuse, but that refusal may be used against you in a court as an admission of guilt. If you refuse, I will submit a blood warrant affidavit to a judge. If approved, I will then forcefully take a sample of your blood for evidentiary analysis. (RT 34.)
These samples came back at.08% and.09%. (RT 18.)
At the conclusion of the motion to suppress hearing, defendant's counsel argued that there was no legal justification for three warrantless searches: the preliminary breath sample of.094% obtained before arrest as part of the field sobriety tests and the two evidentiary breath samples obtained after arrest. (RT 35-36.) When the preliminary breath test came back at.079%, the court stated that “everything after that was an appropriate investigation in to [sic] whether he was at.08 or above.” (RT 39.)
Regarding the two evidentiary breath tests, the court reasoned, “there is no question that he was going to give the blood test, whether he was coerced in to [sic] it by a bad advisement or he was--a chemical test, I...
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