People v. Esayian

• Decision Date: 23 October 2003
• Docket Number: No. D041376.,D041376.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Nicholas J. ESAYIAN, Defendant and Appellant.

5 Cal.Rptr.3d 542

112 Cal.App.4th 1031

The PEOPLE, Plaintiff and Respondent, v. Nicholas J. ESAYIAN, Defendant and Appellant.

No. D041376.

Court of Appeal, Fourth District, Division 1.

October 23, 2003.

Advocate Legal Services and Ronald A. Jackson, Ventura, for Defendant and Appellant.

Mary Frances Prevost, San Diego, as Amicus Curiae on behalf of Defendant; and Appellant.

Bonnie M. Dumanis, District Attorney, Kim-Thoa Hoang and Richard S. Armstrong, Deputy District Attorneys, for Plaintiff and Respondent.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Gary W. Brozio, Deputy Attorneys General, as Amicus Curiae on behalf of Plaintiff and Respondent.

Casey Gwinn, City Attorney, Susan M. Heath, Assistant City Attorney, and Danielle Davidian, Deputy City Attorney as Amicus Curiae on behalf of Plaintiff and Respondent.

HUFFMAN, Acting P.J.

Nicholas J. Esayian was arrested for driving under the influence of alcohol and, in accordance with the implied consent law (Veh.Code,¹ §§ 23612, subd. (a) & 13384), he submitted to a blood test to determine his blood-alcohol content (BAC). Esayian was charged with driving under the influence of alcohol (DUI) as a misdemeanor. In the trial court Esayian moved to suppress the evidence of the blood test on the ground that the phlebotomist who drew his blood was not authorized under the appropriate statute to draw blood for that purpose. Accordingly, Esayian argued that the use of the blood and the results of any test of the blood would violate his constitutional rights under the Fourth and Fourteenth Amendments to the federal Constitution. The trial court denied the motion to suppress. Thereafter Esayian was convicted by a jury of one of the charges then pending against him.

Esayian appealed his conviction to the appellate division of the superior court (Appellate Division). That court affirmed his conviction finding no error in the denial of Esayian's motion to suppress evidence or in the jury trial. The Appellate Division thereafter granted Esayian's request to certify the following questions for determination by this court: (1) whether the trial court erred in denying the suppression motion because the phlebotomist who drew the blood did not meet the requirements of section 23158; and (2) whether it violated Esayian's Fourteenth Amendment right to a fair trial for the prosecution to use the evidence obtained in violation of the statutory scheme to prove an essential element of the charged offense.

We transferred the matter to this court and requested the parties brief a third issue of whether the evidence in this case establishes that County of San Diego (County) law enforcement agencies have a deliberate, systematic and persistent policy to have blood drawn in violation of the statutory scheme. We have also permitted the filing of various amicus curiae briefs and have heard oral argument in the matter. After a review of the record and consideration of the briefing, we are convinced the record before us does not establish a systematic and persistent policy by the County to violate the statutory scheme for drawing blood in this type of case. We are also satisfied that Esayian's blood was not drawn in violation of the Fourth Amendment and that Esayian's right to a fair trial was not violated by the introduction of blood test results where the blood draw did not comply with California's regulatory scheme. Accordingly we will affirm the judgment of the superior court.

FACTUAL BACKGROUND

Deputy Sheriff Charles Morreale stopped Esayian for speeding and subsequently arrested him for DUI. Esayian was given the choice of a blood, breath or urine test to determine his BAC. He elected to submit to a blood test. Deputy Morreale took Esayian to the Vista Detention Facility where, pursuant to a contract between the County and American Forensic Nurses, phlebotomist Sally Garcia drew Esayian's blood. The blood test results showed that Esayian's BAC was .12 percent. Esayian was charged with misdemeanor counts of driving under the influence of alcohol (count 1) and driving with a BAC of .08 percent or greater (count 2).

Prior to trial, Esayian moved to suppress the blood test results on the grounds that Garcia was not authorized to draw blood in DUI cases pursuant to section 23158.

At the pretrial hearing Deputy Morreale testified he arrested Esayian for DUI. Esayian elected to take a blood test. Deputy Morreale was aware that a phlebotomist would be on duty at the Vista Detention Facility and that there was also a breath testing machine at that location in the event Esayian changed his mind as to which chemical test he would choose. Morreale took Esayian to the Vista facility where he observed phlebotomist Sally Garcia draw blood from Esayian. Morreale had observed blood draws for DUI cases on a number of occasions. He did not observe anything unusual about this particular blood draw.

Morreale testified he observed Garcia cleanse the area from which the blood was drawn with a nonalcoholic swab. Deputy Morreale did not know the requirements of California Code of Regulations, title 17, section 1219.1 (Title 17).

Esayian testified that upon his arrest he elected to take a blood test. He did not discuss the qualifications of the phlebotomist with either Deputy Morreale or Ms. Garcia. Esayian believed Ms. Garcia swabbed his arm before drawing the blood. After the test she put cotton gauze and a Band-aid over the puncture. After the process was completed Esayian noted a small trickle of blood. Ms. Garcia gave Esayian a piece of cotton, which he used to clean off the blood. The blood draw procedure took 12 to 15 seconds. Esayian testified that the procedure used by Ms. Garcia did not differ from other times he had given blood samples.

Sally Garcia testified she was employed at the Vista Detention Facility on the date of Esayian's blood draw. She did not remember the details of the specific draw on that date. Ms. Garcia was working for American Forensic Nurses at the Vista facility. A registered nurse was on duty at the time. The nurse would check the suspect's vital signs, but would not necessarily be present when the blood draw took place.

At the time of her testimony at the suppression hearing, Ms. Garcia was employed as a medical assistant for Cassidy Medical Group. Most of her duties at the Cassidy Group generally involved back office responsibilities. She had received six months' training at the Simi Valley Adult School in conducting venipuncture blood draws, although the course was designed for training medical assistants. She is not certified by the State of California. In her medical career she had performed over 200 blood draws. She did not know the requirements of Title 17.

Ms. Garcia worked for American Forensic Nurses for two years and had performed about 100 blood draws relating to driving under the influence cases.

In her usual procedure to draw blood she would wait for the nurse to check the suspect's vital signs. Then Ms. Garcia would use a tourniquet. She did not recall using a swab on the occasion of Esayian's blood draw. If she had she would not have used alcohol or betadine. She would use a handiwipe supplied by American Forensic Nurses. She conducts blood draws at the Vista facility in the same manner as she does while working as a medical technician. She only draws venous blood from the suspect.

Garcia recalled no complications from the procedure. She then testified about the process of collecting and storing the sample.²

DISCUSSION

I DELIBERATE AND SYSTEMATIC VIOLATION OF STATUTE

As we have indicated, we requested that the parties and the amici curiae brief the question of whether the record demonstrated a systematic, deliberate and persistent violation of the statutory scheme regarding blood draws in DUI cases. After careful review of the record, including those matters judicially noticed by the court, we conclude this record does not support a finding of systematic, deliberate and persistent violation of the statutes by the County.

We have reviewed the amicus curiae briefs presented in this case. Amicus curiae on behalf of Esayian cites to the record in another appellate proceeding (Ridener v. Superior Court (May 15, 2003, D041984)), which includes evidence that although the contract between the County and American Forensic Nurses requires blood draws be conducted by qualified personnel, few if any of American Forensic Nurses' phlebotomists are so qualified and that the County is and has been well aware of this fact. The evidence in that record also suggests that American Forensic Nurses' phlebotomists do not maintain their equipment in a medically accepted manner. However, although the file and briefs in that case are proper subjects for judicial notice, the truth of the content of those materials is not. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1062, 31 Cal.Rptr.2d 358, 875 P.2d 73; see also People v. Woodell (1998) 17 Cal.4th 448, 455, 71 Cal.Rptr.2d 241, 950 P.2d 85.) Thus Esayian and amicus curiae on his behalf cannot rely on such evidence to establish that County law enforcement agencies have a deliberate, systematic and persistent policy of having blood drawn in violation of the statutory scheme.

II THE BLOOD DRAW IN THIS CASE DID NOT VIOLATE THE FOURTH AMENDMENT

Esayian contends the trial court erred in denying his motion to suppress evidence under Penal Code section 1538.5. His principal argument is that the blood draw in this case did not comply with the statutory rules governing the drawing of blood in DUI cases and therefore the blood was taken in violation of the Fourth Amendment. During oral argument a separate issue was raised regarding the blood draw in this case. It was argued that under Schmerber v. California (1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (Schmerber), the prosecution must affirmatively...