People v. Balov

• Decision Date: 23 May 2018
• Docket Number: D073018
• Citation: 233 Cal.Rptr.3d 235,23 Cal.App.5th 696
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Peter BALOV, Defendant and Appellant.

23 Cal.App.5th 696

233 Cal.Rptr.3d 235

The PEOPLE, Plaintiff and Respondent,

v.Peter BALOV, Defendant and Appellant.

D073018

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

Filed May 23, 2018

Law Office of David Wilson and David Wilson ; Law Offices of Gretchen von Helms and Gretchen C. von Helms, San Diego for Defendant and Appellant.

Mara W. Elliot, City Attorney, John C. Hemmerling, Assistant City Attorney, and Shelley A. Webb, Deputy City Attorney, for Plaintiff and Respondent.

BENKE, Acting P. J.

After Peter Balov was arrested for suspected drunk driving, the arresting officer advised Balov "that per California law he was required to submit to a chemical test, either a breath or a blood test." Balov did not object and chose a blood test, which showed his blood alcohol level was above the legal limit. Balov was charged with misdemeanor driving under the influence ( Veh. Code, § 23152, subds. (a) & (b) ).¹ Before trial, Balov moved to suppress the results of the blood test, arguing, inter alia, that his consent to the test was coerced. The court denied the motion, the appellate division affirmed, and Balov now challenges the ruling here, arguing as he did below that his consent to the blood test was not voluntary. We reject Balov's argument and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

At the hearing on Balov's motion to suppress, San Diego Police Officer Luis Martinez testified that just before 3:00 a.m. on March 22, 2015, he saw Balov abruptly stop his black Range Rover in an intersection when the traffic signal turned yellow. In response, Martinez turned on his police vehicle's emergency lights and instructed Balov to pull over. Martinez reported that he noticed the smell of alcohol on Balov's breath and that Balov's speech was slurred. Balov admitted he had been drinking and agreed to submit to field sobriety exercises and a preliminary breath sample, which showed his blood alcohol level was over the legal limit.

As a result, Martinez placed Balov under arrest for driving under the influence of alcohol. Martinez testified that after the arrest, he informed Balov of the implied consent law, telling Balov "that per California Law he was required to submit to a chemical test, either a breath or a blood test." Martinez did not inform Balov of the statutory consequences of refusing a test. Balov stated he wanted a blood test and Martinez drove Balov to the police headquarters. During the routine blood draw that followed, Balov was calm and gave no indication of wanting to refuse the test.

Before trial, Balov moved to suppress the results of the warrantless blood test under Penal Code section 1538.5, arguing that his consent was invalid because Martinez had not explained the consequences of refusing chemical testing under section 23612. The city attorney opposed the motion. After the evidentiary hearing, the trial court denied Balov's motion. The court concluded that under the totality of the circumstances, Balov voluntarily consented to the blood test and the test was not taken in violation of his Fourth Amendment right to be free from unreasonable searches.

Balov challenged the order in the San Diego County Superior Court's Appellate Division, which unanimously affirmed the trial court's order. After the city attorney filed a request for publication of the appellate division's order, on its own motion, the division certified the matter for transfer to this court. The certification order notes a split of authority on the issue of implied consent contained in two decisions of the Santa Clara County Superior Court Appellate Division, People v. Mason (2016) 8 Cal.App.5th Supp. 11, 214 Cal.Rptr.3d 685 ( Mason ), and People v. Agnew (2015) 242 Cal.App.4th Supp. 1, 195 Cal.Rptr.3d 486 ( Agnew ). We accepted the transfer under California Rules of Court, rule 8.1008.

DISCUSSION

I

"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." ( People v. Glaser (1995) 11 Cal.4th 354, 362, 45 Cal.Rptr.2d 425, 902 P.2d 729.)

A blood draw is a search subject to the Fourth Amendment. ( Schmerber v. Cal. (1966) 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908.) Under the Fourth Amendment "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ...." While the Fourth Amendment does not specify when a search warrant must be obtained, the United States Supreme Court "has inferred that a warrant must generally be secured." ( Kentucky v. King (2011) 563 U.S. 452, 459, 131 S.Ct. 1849, 179 L.Ed.2d 865.) However, "the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ " ( Brigham City v. Stuart (2006) 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650.) "The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable."

( Florida v. Jimeno (1991) 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297.) It is well established that a consensual search does not violate the Fourth Amendment "because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so." ( Id . at pp. 250-251, 111 S.Ct. 1801.)

"The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and ‘voluntariness is a question of fact to be determined from all the circumstances ....’ " ( Ohio v. Robinette (1996) 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347.) " ‘If the validity of a consent is challenged, the prosecution must prove it was freely and voluntarily given—i.e., "that it was [not] coerced by threats or force, or granted only in submission to a claim of lawful authority." [Citations.]’ " ( People v. Harris (2015) 234 Cal.App.4th 671, 689-690, 184 Cal.Rptr.3d 198 ( Harris ).) " ‘ "The ... voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, ‘The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings—whether express or implied—must be upheld if supported by substantial evidence.’ " ' " ( Id. at p. 690, 184 Cal.Rptr.3d 198.)

Under section 23612, a "person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153." (§ 23612, subd. (a)(1)(A).) The statute "applies broadly and generally to ‘those who drive’—that is, to those who avail themselves of the public streets, roads, and highways to operate motor vehicles in this state." ( Troppman v. Valverde (2007) 40 Cal.4th 1121, 1139, 57 Cal.Rptr.3d 306, 156 P.3d 328 ( Troppman ).)

The implied consent law was adopted in response to the United States Supreme Court's decision in Schmerber , which "approved forcible, warrantless chemical testing of arrested persons under certain conditions, including certain exigent circumstances." ( Agnew, supra , 242 Cal.App.4th Supp. at p. 6, 195 Cal.Rptr.3d 486.) " ‘Although it is clear under Schmerber that a person who has been lawfully arrested may have a blood sample forcibly removed without his consent, provided [certain conditions are met], nevertheless such an episode remains an unpleasant, undignified and undesirable one.’ " ( Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 759, 280 Cal.Rptr. 745, 809 P.2d 404, quoting People v. Superior Court of Kern County (Hawkins ) (1972) 6 Cal.3d 757, 764, 100 Cal.Rptr. 281, 493 P.2d 1145.) "[B]y enacting the implied consent law, thereby providing an alternative method of compelling a person arrested for driving while under the influence to submit to chemical testing, the Legislature afforded officers a means of enforcement that does not involve physical compulsion." ( Troppman, supra , 40 Cal.4th at p. 1136, 57 Cal.Rptr.3d 306, 156 P.3d 328.)

Under section 23612, by the act of driving on California's roads, Balov accepted the condition of implied, advance consent if lawfully arrested for drunk driving.² That advance consent, however, could also have been withdrawn at the time of arrest by Balov's objection to a breath test or blood draw. " ‘[T]he implied consent law is explicitly designed to allow the driver, and not the police officer, to make the choice as to whether the driver will give or decline to give actual consent to a blood draw when put to the choice between consent or automatic sanctions. Framed in the terms of "implied consent," choosing the "yes" option affirms the driver's implied consent and constitutes actual consent for the blood draw. Choosing the "no" option acts to withdraw the driver's implied consent and establishes that the driver does not give actual consent.’ [Citation.] Therefore, rather than determine whether ‘implied consent’ to a chemical test satisfies the Fourth Amendment, we must determine whether submission to a chemical test, after advisement under the implied consent law, is freely and voluntarily given and constitutes actual consent." ( Harris, supra , 234 Cal.App.4th at p. 686, 184 Cal.Rptr.3d 198.) The totality of the circumstances that must be considered in determining if consent is voluntary includes not only advance consent, but the driver's conduct at the time of arrest and the circumstances surrounding the testing.

II

As he did below, Balov argues that because he was not informed by Martinez that...