People v. Fite

• Decision Date: 26 November 1968
• Docket Number: Cr. 4707
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert E. FITE, Jr., Defendant and Appellant.

Page 666

73 Cal.Rptr. 666

267 Cal.App.2d 685

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert E. FITE, Jr., Defendant and Appellant.

Cr. 4707.

Court of Appeal, Third District, California.

Nov. 26, 1968.

Miller, Ford & O'Neal, by James T. Ford, Sacramento, for defendant-appellant.

Thomas C. Lynch, Atty. Gen., by Edsel W. Haws and Roger E. Venturi, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

REGAN, Associate Justice.

Defendant was found guilty by a court, sitting without a jury, of violating section 23101 of the Vehicle Code, i.e., felony drunk driving. He appeals from the judgment of conviction.

At the trial the case was submitted upon the following stipulation of facts: On May 5, 1967, defendant drove a motor vehicle on a public highway. In so doing, defendant neglected a duty imposed upon him by law by failing to yield the right-of-way in violation of Vehicle Code section 21801. Such negligent procedure caused bodily injury to a person other than himself, to wit, Barbara Harder, a human being.

Upon being advised of the provisions of section 13353 of the Vehicle Code, the defendant refused to submit to a blood alcohol test or any test so prescribed in that section. A blood alcohol test was then taken without defendant's consent. The test, taken after defendant's refusal and without his consent, 'was in no way brutal or shocking to the conscience and was incident to a lawful arrest.' The blood alcohol test was administered in a medically approved manner.

Defendant's blood sample was tested and shown to be .21 alcoholic content. A blood alcohol level of .21 would be sufficient to place the defendant under the influence of alcohol for the purposes of driving a vehicle in violation of the statute. Defendant waived the necessity of a formal foundation for admission of the test results and stipulated that if the test should be found to be admissible 'that would be the finding, without further cross-examination.'

Defendant did, however, oppose the introduction of the test results on the basis that the legislative intent behind section 13353 precluded the taking and introduction of a chemical test taken over an arrestee's objections. The results of the blood alcohol test were offered to prove that defendant was under the influence of intoxicating liquor, the only element of the offense not stipulated to. ¹ Defendant's objection was overruled by the lower court and such ruling forms the basis of this appeal.

Vehicle Code section 13353 (enacted Stats.1966, 1st Ex.Sess., c. 138, p. 634, § 1) provides, in pertinent part, as follows:

'(a) Any person who drives a motor vehicle upon a highway shall be deemed to have given his consent to a chemical test of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense allegedly committed while the person was driving a motor vehicle under the influence of intoxicating liquor. The test shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe such person was driving a motor vehicle upon a highway while under the influence of intoxicating liquor. Such person shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of six months.

'The person arrested shall have the choice of whether the test shall be of his blood, breath or urine.

'Any person who is dead, unconscious, or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn his consent and such tests may be administered whether or not such person is told that his failure to submit to the test will result in the suspension of his privilege to operate a motor vehicle.

'(b) If any such person refuses the officer's request to submit to a chemical test, the department, upon receipt of the officer's sworn statement that he had reasonable cause to believe such person had been driving a motor vehicle upon a highway while under the influence of intoxicating liquor and that the person had refused to submit to the test after being requested by the officer, shall suspend his privilege to operate a motor vehicle for a period of six months. No such suspension shall become effective until 10 days after the giving of written notice thereof, as provided for in subdivision (c).' ²

The question presented for this court's decision is whether the provisions of Vehicle Code section 13353 call for the exclusion of evidence obtained from chemical tests taken over and in spite of a person's refusal to submit, when the taking is in no way brutal or shocking to the conscience and is incident to a lawful arrest. In answering this question we will decide whether the Legislature, in enacting section 13353, intended to preempt the field of chemical sobriety tests by complete statutory regulation.

In Bush v. Bright, 264 A.C.A. 924, 928, 71 Cal.Rptr. 123, 125, the court states:

"Statutes must be given a reasonable and common sense construction in accordance with the apparent purpose and intention of the lawmakers--one that is practical rather than technical, and that will lead to a wise policy rather than to mischief or absurdity.' (45 Cal.Jur.2d 625--626.) '(I)n construing a statute the courts may consider the consequences that might flow from a particular interpretation. They will construe the statute with a view to promoting rather than to defeating its general purpose and the policy behind it.' (Id., p. 631.) Remedial statutes such as section 13353 'must be liberally construed to effect their objects and suppress the mischief at which they are directed. They should not be given a strained construction that might impair their remedial effect.' (Id., pp. 681--682.)'

'The purpose of section 13353 is to reduce the toll of death and injury resulting from the operation of motor vehicles on California highways by intoxicated persons. * * *

'The obvious reason for acquiescence in the refusal of such a test by a person who as a matter of law is 'deemed to have given his consent' is to avoid the violence which would often attend forcible tests upon recalcitrant inebriates. With this exception, the chemical tests may be given to any person covered by the statute, even if he be 'dead, unconscious, or otherwise in a condition rendering him incapable of refusal.'

'Such tests do not violate one's right against self-incrimination (Schmerber v. State of California, 384 U.S. 757, 760--765, 86 S.Ct. 1826, 16 L.Ed.2d 908; People v. Sudduth, supra, 65 Cal.2d 543, 546--547, 55 Cal.Rptr. 393, 421 P.2d 401; United States v. Wade, 388 U.S. 218, 221, 87 S.Ct. 1926, 18 L.Ed.2d 1149), nor one's right to be free from unreasonable searches and seizures (Schmerber v. California, supra, 384 U.S. pp. 766--772, 86 S.Ct. 1826, (16 L.Ed.2d pp. 917--920)), nor one's right to counsel (United States v. Wade, supra; People v. Sudduth, supra, 65 Cal.2d p. 546, 55 Cal.Rptr. 393, 421 P.2d 401; see also Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1149).' (Id. pp. 925--926, 71 Cal.Rptr. p. 124.)

'* * * It is firmly established that a drunken driver has no Right to resist or refuse such a test (See Schmerber v. California, supra, 384 U.S. 757, 760--765, 86 S.Ct. 1826, (16 L.Ed.2d 908, 913--916); People v. Sudduth, supra, 65 Cal.2d 543, 546--547, 55 Cal.Rptr. 393, 421 P.2d 401). It is simply because such a person has the Physical power to make the test impractical, and dangerous to himself and those charged with administering it, that it is excused upon an indication of his unwillingness.' (Id. pp. 927--928, 71 Cal.Rptr. p. 125.)

In Finley v. Orr, 262 A.C.A. 711, 717, 69 Cal.Rptr. 137, 140, the court states:

'In People v. Bustos, 247 Cal.App.2d 422, 424, 55 Cal.Rptr. 603, defendant asserted on appeal that the admission of evidence of a blood sample taken from him violated his privilege against self-incrimination. The court held (p. 424, 55 Cal.Rptr. 603) that the decision in Schmerber v. California (supra) 'squarely negates defendant's assertion."

In Breithaupt v. Abram, 352 U.S. 432, 439--440, 77 S.Ct. 408, 412, 1 L.Ed.2d 448, 452--453, the court, in upholding a test based on a sample of blood taken by a physician at the request of a police officer from the accused while the latter was unconscious, which was admitted in evidence, comments: 'Modern community living requires modern scientific methods of crime detection lest the public go unprotected. The increasing slaughter on our highways, most of which should be...