People v. Frederick

• Decision Date: 24 March 1952
• Docket Number: Cr. 4703
• Citation: 109 Cal.App.2d 897,241 P.2d 1039
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. FREDERICK.

Page 1039

241 P.2d 1039

109 Cal.App.2d 897

PEOPLE v. FREDERICK.

Cr. 4703.

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

March 24, 1952.

Hearing Denied April 21, 1952.

William C. Ring and Wells & Starkey, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

DORAN, Justice.

Appellant was charged with violation of Vehicle Code, Section 501, by wilfully, unlawfully and feloniously driving an automobile 'while under the influence of intoxicating liquor, and in an unlawful manner, causing bodily injury to Robert Russell Buzzell, Lorraine Buzzell and Francis Carter Gland, human beings'.

About 2:30 or 3:00 a. m. on November 26, 1950, at the intersection of Florence Avenue and Alameda Street, a collision occurred between a 1936 Ford sedan driven by defendant south on Alameda, and a 1941 Ford sedan driven by Robert Russell Buzzell east on Florence. Frances Carter Gland was a passenger in defendant's car and Buzzell's wife, Lorraine, was riding in the Buzzell automobile. Both drivers and passengers sustained injuries and were transported by ambulance to the Tweedy Industrial Hospital in South Gate, three miles away. None of the injuries were fatal and apparently none resulted in permanent disability.

There is some conflict in the evidence. From the testimony of John de Paulis who was then driving south on Alameda Street, it appears that defendant's car passed with witness' car 'awfully fast', later estimated at 50 miles per hour, swerved out onto the wrong side of the street, and collided with the Buzzell car which was almost through the intersection. There were boulevard stop signs and red flasher signals at the intersection. It is admitted in appellant's brief that defendant 'violated the law in not completely stopping before entering the intersection', but claimed that neither that violation nor the fact that defendant was 'driving slightly on the wrong side of the street', was a proximate cause of the injuries. Appellant maintains that 'he proceeded across the intersection at less than 30 m. p. h. and had cleared all but 15 feet when Buzzell suddenly darted in front of him and was struck by defendant's car'; that 'In this sudden peril he turned to his left or southeast across the center line and probably speeded up in hopes of averting the collision'.

The evidence is also in conflict as to the circumstances surrounding the taking of a sample of appellant's blood at the Tweedy Industrial Hospital. The testimony of Dr. Victor Makita, who operates the hospital, was that when defendant was brought in, 'He was complaining of pain in the left elbow, pain in the chest, principally; and his breath was markedly alcoholic. * * * His temperature and respiration were normal, and he had a pulse rate of 80 and blood pressure of 120 over 75; and he was conscious and apparently not in shock'. There was other testimony to the effect that appellant's breath was alcoholic. Appellant, who had been conveying two other men on a drinking tour, denied having had anything to drink except two beers earlier in the evening.

According to Dr. Makita's testimony, after treating appellant's injuries, appellant was asked 'whether it was all right to draw blood for blood alcohol tests for the California Highway Patrol', and 'He said it was all right. Put his arm out'. Dr. Makita then 'put a tourniquet around his arm and cleansed the area with benzine, and Dr. Kern (who was there attending the Buzzells) extracted the blood with a syringe'. The sample so obtained was delivered to the California Highway Patrol and a chemical examination disclosed that appellant's blood contained .21 of one per cent of alcohol by weight.

Appellant's version is that the blood extraction occurred while appellant was unconscious and without consent being given therefor. The appellant claims to have been unconscious from the time of the accident until waking up in the General Hospital between 9:00 and 10:00 o'clock the next morning, and denied any recollection of being at the Tweedy Industrial Hospital. Records of the General Hospital show a notation at 7:00 a. m.: 'Admitted to Ward 5600 per stretcher. Conscious but rather drowsy'.

Defendant, before trial, 'moved the trial court to suppress evidence of the blood specimens coercively extracted from his body without his consent and the alcoholic tests of said samples'. The grounds of this motion were that 'defendant's rights to personal security and privacy were violated by said doctors, plaintiff and its agents in violation of the Fourth Amendment * * * and that the use of said blood and any chemical analysis thereof in evidence * * * will violate defendant's rights to due process of law and against self-incrimination and to not be a witness against himself and to not be compelled to furnish evidence against himself as guaranteed by the Fourteenth Amendment, Constitution of the United States, and Article I, sec. 13, Constitution of the State of California.' The motion was denied. The taking of this blood sample, its chemical analysis, and use in evidence resulting in conviction, form the basis of appellant's chief ground for reversal.

Cited and discussed in some detail by both parties to this appeal is the case of People v. Rochin, 101 Cal.App.2d 140, 225 P.2d 1, 913, which was a prosecution for unlawful possession of a preparation of morphine. Two copsules containing the preparation were found by officers who broke into defendant's bedroom without a warrant; later, the capsules which had been swallowed by defendant were forcibly recovered by means of a stomach pump. The appellate court, following the well established California rule, held that the capsules, although illegally obtained, were nevertheless admissible in evidence. A hearing in the Supreme Court of California was denied, three justices dissenting, in 225 P.2d 913.

In Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 210, 96 L.Ed. ----, the Supreme Court of the United States, on certiorari, unanimously held that the conviction, because obtained by the...