People v. Brannon

• Decision Date: 15 June 1973
• Citation: 32 Cal.App.3d 971,108 Cal.Rptr. 620
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Robert Lee BRANNON, Defendant and Respondent. Civ. 1982.

Page 620

108 Cal.Rptr. 620

32 Cal.App.3d 971

The PEOPLE, Plaintiff and Appellant, v. Robert Lee BRANNON, Defendant and Respondent.

Civ. 1982.

Court of Appeal, Fifth District, California.

June 15, 1973.

Franklin J. Mitchell, Jr., Fresno, for defendant and respondent.

Evelle J. Younger, Atty. Gen., Edward A. Heinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., and Charles P. Just and W. Scott Thorpe, Deputy Attys. Gen., Sacramento, for plaintiff and appellant.

OPINION

GEO. A. BROWN, Associate Justice.

Robert Lee Brannon was convicted in the Municipal Court of the Fresno Judicial District of misdemeanor drunk driving in violation of Vehicle Code section 23102, subdivision (a). The trial judge granted defendant's motion for a new trial on the ground that the results of a breathalyzer test were improperly received in evidence. The People appealed to the appellate department of the superior court. That court reversed the order granting the new trial. This court accepted certification 'to secure uniformity of decision or to settle important questions of law.' (Cal.Rules of Court, rule 63(a).)

The single issue for determination is whether the results of a breathalyzer test taken pursuant to but in violation of Vehicle Code section 13353 ¹ are admissible in evidence in a prosecution for misdemeanor drunk driving (Veh.Code, § 23102, subd. (a)), ² the officer having intentionally failed to advise the defendant of his right of choice among blood, breath or urine tests as required by section 13353.

The facts are stipulated. After defendant's arrest on December 17, 1971, by a California Highway Patrol officer for violation of section 23102, he was taken to the Fresno County Sheriff's Office, where he was administered a chemical test for alcohol on a breathalyzer machine. Though the sheriff's deputies were aware of the provisions of section 13353, they intentionally failed to advise the defendant that he had a choice of whether the chemical test would be of his blood, breath or urine because they had been advised by an assistant district attorney of Fresno County during a training program for law enforcement officers that such advice was not required. The officers were instructed during this training program simply to place the suspected drunk driver before the breathalyzer machine and to tell him to blow into the mouthpiece, and this was the procedure followed in the instant case. At the trial, the results of the test were received into evidence over the timely objection of the defendant.

Kesler v. Department of Motor Vehicles (1969) 1 Cal.3d 74, at page 77, 81 Cal.Rptr. 348, at page 350, 459 P.2d 900, at page 902, explicates the purpose of Vehicle Code section 13353:

'Our implied consent statute, including section 13353, was enacted to fulfill the need for a fair, efficient and accurate system of detection and prevention of drunken driving. (Citations.) The immediate purpose of section 13353 is to obtain the best evidence of blood alcohol content at the time of the arrest of a person reasonably believed to be driving while intoxicated. The long range purpose is, of course, to inhibit intoxicated persons from driving on the highways. (Citation.)'

(See Zidell v. Bright (1968) 264 Cal.App.2d 867, 71 Cal.Rptr. 111.)

The relationship between section 13353 and prosecutions under section 23102 is rather obvious. The test results under section 13353 may be and are used as evidence in prosecutions under section 23102, and the administrative remedy of six months' license suspension under section 13353 may be imposed notwithstanding a prosecution under section 23102. (People v. Fite (1968) 267 Cal.App.2d 685, 690--691, 73 Cal.Rptr. 666; People v. Hanggi (1968) 265 Cal.App.2d Supp. 969, 974, 70 Cal.Rptr. 540.) It is also evident that as a matter of public policy it is desirable to obtain a sample for one of the tests in a noncoercive fashion, thereby substituting volition for compulsion. (People v. Superior Court (Hawkins) (1972) 6 Cal.3d 757, 764--765, 100 Cal.Rptr. 281, 493 P.2d 1145; Lampman v. Department of Motor Vehicles (1973) 28 Cal.App.3d 922, 927, 105 Cal.Rptr. 101; People v. Fite, supra, 267 Cal.App.2d 685, 690--691, 73 Cal.Rptr. 666.)

The existence of the relationship between the two sections and the importance of the valid state interest in following a voluntary procedure, however, does not reach the fundamental pivotal issue because desirability as such cannot be equated with constitutionality. The more apt question is whether the failure to expressly advise the defendant that he has a choice of tests, in violation of section 13353, is constitutionally intolerable, requiring the application of the exclusionary rule in a section 23102 prosecution. We have concluded that such a violation of section 13353 involves no violation of any constitutionally protected interest. It follows that absent an express statutory provision making the evidence obtained as a result of such statutory violation inadmissible, the evidence was properly admitted.

It is elemental that the illegality tainting evidence and rendering it inadmissible is illegality flowing from the violation of a defendant's constitutional rights--primarily those involving unlawful searches and seizures in violation of the Fourth Amendment to the United States Constitution and the essentially identical guarantee of personal privacy set forth in article I, section 19, of the California Constitution. (Weeks v. United States (1914) 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; People v. Cahan (1955) 44 Cal.2d 434, 282 P.2d 905.) Evidence obtained in violation of a statute is not inadmissible per se unless the statutory violation also has a constitutional dimension. For example, the knock and notice requirements of Penal Code sections 844 and 1531 are codifications of the common law (People v. Rosales (1968) 68 Cal.2d 299, 303--305, 66 Cal.Rptr. 1, 437 P.2d 489) and the violation thereof renders any following search and seizure 'unreasonable' within the meaning of the Fourth Amendment. (Greven v. Superior Court (1969) 71 Cal.2d 287, 290, 78 Cal.Rptr. 504, 455 P.2d 432.)

We fail to perceive, however, how the failure to advise a person of his choice of three tests under section 13353 violates any constitutionally protected right. It is established that the government may utilize the results of chemical analyses performed upon a blood sample forcibly removed without his consent, provided it is done in a reasonable, medically approved manner as an incident to the defendant's arrest. (Breithaupt v. Abram (1957) 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448; Schmerber v. California (1966) 384 U.S. 757, 766--772, 86 S.Ct. 1826, 1833--1836, 16 L.Ed.2d 908; People v. Duroncelay (1957) 48 Cal.2d 766, 771--772, 312 P.2d 690.)

It is also clear that the right to obtain and utilize such chemical analyses under the authority of Schmerber and Duroncelay has not been eliminated by the enactment of section 13353 and the 1969 amendment thereto. (People v. Superior Court (Hawkins), supra, 6 Cal.3d 757, 761, 764--765, 100 Cal.Rptr. 281, 493 P.2d 1145; Lampman v. Department of Motor Vehicles, supra, 28 Cal.App.3d 922, 927, 105 Cal.Rptr. 101; People v. Kraft (1970) 3 Cal.App.3d 890, 84 Cal.Rptr. 280; People v. Fite, supra, 267 Cal.App.2d 685, 73 Cal.Rptr. 666; People v. Wren (1969) 271 Cal.App.2d 788, 76 Cal.Rptr. 673.) In People v. Fite, supra, upon refusal of the defendant to submit to a blood alcohol test under section 13353, blood was withdrawn nonconsensually and a chemical test performed thereon. The court squarely held that the test was admissible and in doing so said:

'We hold that Vehicle Code section 13353 complements rather than supersedes section 23101, and that the enactment of the implied consent law in no way affected the admissibility of blood alcohol tests under established case law. . . .

'Section 13353 has two separate objectives, namely: (1) to secure chemical tests for determining whether or not a person was intoxicated while driving a motor vehicle and to allow introduction of such evidence into court; and (2) to provide an administrative penalty for those drivers who refuse to comply. We think it is clear that the administrative penalty imposed upon a licensee who drives a motor vehicle while drunk upon the highways of this state is in addition to, and separate and apart from, the penalty imposed by said section 23101. Nowhere do we find any legislative indication that by the enactment of the implied consent law, the legislature thereby intended to preclude the taking of blood samples as an incident to a lawful arrest over a person's refusal in the absence of force or violence.' (267 Cal.App.2d at pp. 690--691, 73 Cal.Rptr. at p. 671.)

People v. Superior Court (Hawkins), supra, 6 Cal.3d at page 765, 100 Cal.Rptr., at page 286, 493 P.2d, at page 1150, refers to section 13353 as providing 'an additional or alternative method of compelling a person arrested for drunk driving to submit to a test for intoxication, . . .'

It would be inconsonant and inconsistent to hold that the method of obtaining a blood alcohol sample violates the strictures of constitutional guarantees simply because a defendant is not advised of a choice of three tests in the face of established law that a sample taken without consent in a medically approved manner does not violate any constitutional protections. We reject such an extravagant extension of the Constitution and decline to so hold.

Petitioner seeks to have interpreted into the statute a legislative intent that the results of a test when a defendant is not informed of his choices are inadmissible in evidence. Senate Bill 1065 as first proposed in 1969 amended sections 23101 and 23102 by making the results of chemical tests inadmissible in evidence unless the arresting officer advised the person that he had a choice. This language was stricken...